{"id":41725,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/350-holger-way-san-jose-ca-lease-corporate-technology-centre.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"350-holger-way-san-jose-ca-lease-corporate-technology-centre","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/land\/350-holger-way-san-jose-ca-lease-corporate-technology-centre.html","title":{"rendered":"350 Holger Way (San Jose, CA) Lease – Corporate Technology Centre Associates LLC and Redback Networks Inc."},"content":{"rendered":" BUILDING 4\n\n\n\n\n LEASE\n\n\n\n\n BY AND BETWEEN\n\n CORPORATE TECHNOLOGY CENTRE ASSOCIATES LLC,\n A CALIFORNIA LIMITED LIABILITY COMPANY\n\n AS LANDLORD\n\n AND\n\n REDBACK NETWORKS INC.,\n A DELAWARE CORPORATION\n\n AS TENANT\n\n\n OCTOBER 27, 1999\n\n\n\n\n\n 2\n\n LEASE\n\n\n THIS LEASE, dated October 27, 1999 for reference purposes only, is\nmade by and between CORPORATE TECHNOLOGY CENTRE ASSOCIATES LLC, a California\nlimited liability company (\"Landlord\") and REDBACK NETWORKS INC., a Delaware\ncorporation (\"Tenant\"), to be effective and binding upon the parties as of the\ndate the last of the designated signatories to this Lease shall have executed\nthis Lease (the \"Effective Date of this Lease\").\n\n\n ARTICLE 1\n\n REFERENCE\n\n1.1 REFERENCES. All references in this Lease (subject to any further\nclarifications contained in this Lease) to the following terms shall have the\nfollowing meaning or refer to the respective address, person, date, time period,\namount, percentage, calendar year or fiscal year as below set forth:\n\n Tenant's Address for Notice: Redback Networks Inc.\n 1389 Moffett Park Drive,\n Sunnyvale, California 94089\n\n Tenant's Representative: Pat Ryan\n\n Landlord's Address for Notices: c\/o Menlo Equities LLC\n 525 University Avenue\n Suite 100\n Palo Alto, California 94301\n\n Landlord's Representative: Henry Bullock\/Richard Holmstrom\n Phone Number: (650) 326-9300\n\n Intended Commencement Date: March 1, 2000\n\n Term: Nine (9) years\n \n Lease Expiration Date: Nine (9) years from the Actual Lease\n Commencement Date, unless earlier\n terminated by Landlord in accordance\n with the terms of this Lease, or\n extended by Tenant pursuant to\n Article 15.\n\n Options to Renew: Two (2) options to renew, each for a\n term of five (5) years.\n\n First Month's Prepaid Rent $191,002.25\n\n Tenant's Security Deposit: $1,146,013.50\n\n Late Charge Amount: Five Percent (5%) of the Delinquent\n Amount\n\n Tenant's Required Liability\n Coverage: $10,000,000 Combined Single Limit\n\n Brokers: Craig Leiker and Jere Hench of Wayne\n Mascia Associates (Tenant's Broker)\n\n Dennis Chambers, Steve Horton and Kalil Jenab of Commercial Property\n Services Company (Landlord's Broker)\n\n Project: That certain real property situated\n in the City of San Jose, County of\n Santa Clara, State of California, to\n be improved with a total of eight (8)\n building(s), which real property is\n shown on the Site Plan attached\n hereto as Exhibit \"A\" and is commonly\n known as or otherwise described as\n follows: Corporate Technology Centre,\n San Jose, California.\n\n Property: That certain real property situated\n in the City of San Jose, County of\n Santa Clara, State of California, as\n presently improved with one (1)\n building, which real property is\n shown as Parcel 4 on the Site Plan\n attached hereto as Exhibit \"B\";\n provided however that, if such Parcel\n 4 is adjusted prior to final legal\n parcelization, the Property shall\n consist of the final legal parcel\n resulting from such parcelization.\n\n Building: That certain building on the Property\n in which the Leased Premises are\n located commonly known as or\n otherwise described as follows: 350\n Holger Way, San Jose, California (the\n \"Building\") which Building is shown\n outlined on Exhibit \"B\" hereto.\n\n\n\n 2.\n 3\n\n Outside Areas: The \"Outside Areas\" shall mean all\n areas within the Property which are\n located outside the Building, such as\n pedestrian walkways, parking areas,\n landscaped areas, open areas and\n enclosed trash disposal areas.\n\n Leased Premises: All the interior space within the\n Building, including stairwells,\n connecting walkways, and atriums,\n consisting of approximately 96,710\n square feet and, for purposes of this\n Lease, agreed to contain said number\n of square feet.\n\n Tenant's Expense Share: The term \"Tenant's Expense Share\"\n shall mean the percentage obtained by\n dividing the rentable square footage\n of the Leased Premises at the time of\n calculation by the rentable square\n footage of the Building. Such\n percentage is currently 100%. In the\n event that any portion of the\n Building is sold by Landlord, or the\n rentable square footage of the Leased\n Premises or the Building is otherwise\n changed, Tenant's Expense Share shall\n be recalculated to equal the\n percentage described in the first\n sentence of this paragraph, so that\n the aggregate Tenant's Expense Share\n of all tenants of the Building shall\n equal 100%.\n\n Base Monthly Rent: The term \"Base Monthly Rent\" shall\n mean the following:\n\n Months *Rent\/SF\/Month\/NNN\n 01-12 $1.975\n\n *Commencing with Month 13 of the\n Lease Term and at the end of each 12\n month period thereafter, Base Monthly\n Rent shall be increased at a rate of\n 3.0% per annum compounded.\n\n Permitted Use: General office, research and\n development, marketing, sales,\n manufacturing, distribution,\n warehouse and other related lawful\n uses.\n\n Exhibits: The term \"Exhibits\" shall mean the\n Exhibits of this Lease which are\n described as follows:\n\n Exhibit \"A\" - Site Plan showing the\n Project\n\n Exhibit \"B\" - Site Plan showing the\n Property and\n delineating the\n Building in which the\n Leased Premises are\n located.\n\n Exhibit \"C\" - Work Letter\n\n Exhibit \"D\" - Form of Lease\n Commencement Date\n Certificate\n\n Exhibit \"E\" - Form of Tenant Estoppel\n Certificate\n\n ARTICLE 2\n\n LEASED PREMISES, TERM AND POSSESSION\n\n2.1 DEMISE OF LEASED PREMISES. Landlord hereby leases to Tenant and Tenant\nhereby leases from Landlord for Tenant's own use in the conduct of Tenant's\nbusiness and not for purposes of speculating in real estate, for the Lease Term\nand upon the terms and subject to the conditions of this Lease, that certain\ninterior space described in Article 1 as the Leased Premises, reserving and\nexcepting to Landlord the right to fifty percent (50%) of all assignment\nconsideration and excess rentals as provided in Article 7 below. Tenant's lease\nof the Leased Premises, together with the appurtenant right to use the Outside\nAreas as described in Paragraph 2.2 below, shall be conditioned upon and be\nsubject to the continuing compliance by Tenant with (i) all the terms and\nconditions of this Lease, (ii) all Laws governing the use of the Leased Premises\nand the Property, (iii) all Private Restrictions, easements and other matters\nnow of public record respecting the use of the Leased Premises and Property, and\n(iv) all reasonable rules and regulations from time to time established by\nLandlord. Notwithstanding any provision of this Lease to the contrary, Landlord\nhereby reserves to itself and its designees all rights of access, use and\noccupancy of the Building roof, and Tenant shall have no right of access, use or\noccupancy of the Building roof except (if at all) to the extent required in\norder to enable Tenant to perform Tenant's maintenance and repair obligations\npursuant to this Lease.\n\n2.2 RIGHT TO USE OUTSIDE AREAS. As an appurtenant right to Tenant's right to the\nuse and occupancy of the Leased Premises, Tenant shall have the right to use the\nOutside Areas in conjunction with its use of the Leased Premises solely for the\npurposes for which they were designated and intended and for no other purposes\nwhatsoever. Tenant's right to so use the Outside Areas shall be subject to the\nlimitations on such use as set forth in Article 1 and shall terminate\nconcurrently with any termination of this Lease.\n\n\n\n 3.\n 4\n\n1.1 LEASE COMMENCEMENT DATE AND LEASE TERM. Subject to Paragraph 2.4 below, the\nterm of this Lease shall begin, and the Lease Commencement Date shall be deemed\nto have occurred, on the Intended Commencement Date, as set forth in Article 1\n(the \"Lease Commencement Date\"). The term of this Lease shall in all events end\non the Lease Expiration Date (as set forth in Article 1). The Lease Term shall\nbe that period of time commencing on the Lease Commencement Date and ending on\nthe Lease Expiration Date (the \"Lease Term\").\n\n1.2 DELIVERY OF POSSESSION. Landlord shall deliver to Tenant possession of the\nLeased Premises at such time as the Improvement Work (as defined in Paragraph\n2.5 below) is deemed \"Substantially Complete\" as defined in the Work Letter. If\nLandlord is unable to so deliver possession of the Leased Premises to Tenant in\nthe agreed condition on or before the Intended Commencement Date, Landlord shall\nnot be in default under this Lease, nor shall this Lease be void, voidable or\ncancelable by Tenant until the lapse of ninety (90) days after the Intended\nCommencement Date (the \"delivery grace period\"). In the event Landlord is (a) up\nto fifteen (15) days late but less than thirty (30) days late (beyond the\nIntended Commencement Date) in delivering the Leased Premises to Tenant, Tenant\nwill receive one (1) day of Base Monthly Rent for each day late; (b) more than\nfifteen (15) days but less than thirty (30) days late (beyond the Intended\nCommencement Date) in delivering the Leased Premises to Tenant, Tenant will\nreceive two (2) day of Base Monthly Rent for each day late; (c) more than thirty\n(30) days but less than sixty (60) days late (beyond the Intended Commencement\nDate) in delivering the Leased Premises to Tenant, Tenant shall receive three\n(3) days of Base Monthly Rent for each day late; or (d) more than sixty (60)\ndays late (beyond the Intended Commencement Date) in delivering the Leased\nPremises, Tenant shall receive four (4) days of Base Monthly Rent for each day\nlate. Special or customized installations, such as but not limited to, the\ncafeteria, shall not be required to be substantially complete by the Lease\nCommencement Date and will not be considered in determining the penalties, if\nany, outlined above. Additionally, the periods above set forth shall be extended\nfor such number of days as Landlord may be delayed in delivering possession of\nthe Leased Premises to Tenant by reason of Force Majeure or the action or\ninaction of Tenant. If Landlord is unable to deliver possession of the Leased\nPremises in the agreed condition to Tenant within ninety (90) days after the\nIntended Commencement Date (including any extension thereof by reason of Force\nMajeure or the actions or inactions of Tenant), then Tenant's sole remedy shall\nbe to terminate this Lease, and in no event shall Landlord be liable in damages\nto Tenant for such delay. Tenant may not terminate this Lease at any time after\nthe date Landlord notifies Tenant that the Leased Premises have been put into\nthe agreed condition and are available for delivery to Tenant, unless Landlord's\nnotice is not given in good faith.\n\n1.3 PERFORMANCE OF IMPROVEMENT WORK; ACCEPTANCE OF POSSESSION. Landlord shall,\npursuant to the work letter attached as Exhibit C hereto and made a part of this\nLease (the \"Work Letter\"), perform the work and make the installations in the\nLeased Premises substantially as set forth in the Work Letter (such work and\ninstallations hereinafter referred to as the \"Improvement Work\"). Without\nlimiting the foregoing, Landlord agrees to deliver in good working order the\nroof surface and all existing plumbing, lighting, heating, ventilating and air\nconditioning systems within the Leased Premises. It is agreed that by occupying\nthe Leased Premises, Tenant formally accepts same and acknowledges that the\nLeased Premises are in the condition called for hereunder, subject to normal\npunchlist items specified by Tenant to Landlord in writing within ten (10) days\nof such occupancy. Notwithstanding the foregoing, Tenant may elect to construct\nthe Improvement Work (and use Tenant's own contractor) by written notice to\nLandlord within five (5) business days after it receives a bid from Webcor\n(Landlord's Contractor) for construction of the Improvement Work. In the event\nTenant elects to construct the Improvement work using Tenant's own contractor,\nLandlord and Tenant agree to amend this Lease and Work Letter to so provide, and\nto provide that the Lease Commencement Date will be a fixed date of March 1,\n2000 (regardless of completion of the Improvement Work) and Landlord shall agree\nto deliver to Tenant the Building Shell (as defined in the Work Letter) upon\nfull execution of such amendment.\n\n1.4 SURRENDER OF POSSESSION. Immediately prior to the expiration or upon the\nsooner termination of this Lease, Tenant shall remove all of Tenant's signs from\nthe exterior of the Building and shall remove all of Tenant's equipment, trade\nfixtures, furniture, supplies, wall decorations and other personal property from\nwithin the Leased Premises, the Building and the Outside Areas, and shall vacate\nand surrender the Leased Premises, the Building, the Outside Areas and the\nProperty to Landlord in the same condition, broom clean, as existed at the Lease\nCommencement Date, reasonable wear and tear excepted. Tenant shall repair all\ndamage to the Leased Premises, the exterior of the Building and the Outside\nAreas caused by Tenant's removal of Tenant's property. Tenant shall patch and\nrefinish, to Landlord's reasonable satisfaction, all penetrations made by Tenant\nor its employees to the floor, walls or ceiling of the Leased Premises, whether\nsuch penetrations were made with Landlord's approval or not. Tenant shall repair\nall damage caused by Tenant to the exterior surface of the Building and the\npaved surfaces of the Outside Areas and, where necessary, replace or resurface\nsame. Additionally, to the extent that Landlord shall have notified or is deemed\nto have notified Tenant in writing at the time the improvements were completed\nthat it desired to have certain improvements made by Tenant or at the request of\nTenant removed at the expiration or sooner termination of the Lease, Tenant\nshall, upon the expiration or sooner termination of the Lease, remove any such\nimprovements constructed or installed by Landlord or Tenant and repair all\ndamage caused by such removal. If the Leased Premises, the Building, the Outside\nAreas and the Property are not surrendered to Landlord in the condition required\nby this paragraph at the expiration or sooner termination of this Lease,\nLandlord may, at Tenant's expense, so remove Tenant's signs, property and\/or\nimprovements not so removed and make such repairs and replacements not so made\nor hire, at Tenant's expense, independent contractors to perform such work.\nTenant shall be liable to Landlord for all costs incurred by Landlord in\nreturning the Leased Premises, the Building and the Outside Areas to the\nrequired condition, together with interest on all costs so incurred from the\ndate paid by Landlord at the then maximum rate of interest not prohibited or\nmade usurious by law until paid. Tenant shall pay to Landlord the amount of all\ncosts so incurred plus such interest thereon, within ten (10) days of Landlord's\nbilling Tenant for same. Tenant shall indemnify Landlord against loss or\nliability resulting from delay by Tenant in surrendering the Leased Premises,\nincluding, without limitation, any claims made by any succeeding Tenant or any\n\n\n\n 4.\n 5\n\nlosses to Landlord with respect to lost opportunities to lease to succeeding\ntenants.\n\n\n ARTICLE 3\n\n RENT, LATE CHARGES AND SECURITY DEPOSITS\n\n3.1 BASE MONTHLY RENT. Commencing on the Lease Commencement Date (as determined\npursuant to Paragraph 2.3 above) and continuing throughout the Lease Term,\nTenant shall pay to Landlord, without prior demand therefor, in advance on the\nfirst day of each calendar month, the amount set forth as \"Base Monthly Rent\" in\nArticle 1 (the \"Base Monthly Rent\").\n\n3.2 ADDITIONAL RENT. Commencing on the Lease Commencement Date (as determined\npursuant to Paragraph 2.3 above) and continuing throughout the Lease Term, in\naddition to the Base Monthly Rent and to the extent not required by Landlord to\nbe contracted for and paid directly by Tenant, Tenant shall pay to Landlord as\nadditional rent (the \"Additional Rent\") the following amounts:\n\n (a) An amount equal to all Property Operating Expenses (as defined in\nArticle 13) incurred by Landlord. Payment shall be made by whichever of the\nfollowing methods (or combination of methods) is (are) from time to time\ndesignated by Landlord:\n\n (i) Landlord may forward invoices or bills for such expenses to\nTenant, and Tenant shall, no later than ten (10) days prior to the due date, pay\nsuch invoices or bills and deliver satisfactory evidence of such payment to\nLandlord, and\/or\n\n (ii) Landlord may bill to Tenant, on a periodic basis not more\nfrequently than monthly, the amount of such expenses (or group of expenses) as\npaid or incurred by Landlord, and Tenant shall pay to Landlord the amount of\nsuch expenses within ten days after receipt of a written bill therefor from\nLandlord, and\/or\n\n (iii) Landlord may deliver to Tenant Landlord's reasonable estimate\nof any given expense (such as Landlord's Insurance Costs or Real Property\nTaxes), or group of expenses, which it anticipates will be paid or incurred for\nthe ensuing calendar or fiscal year, as Landlord may determine, and Tenant shall\npay to Landlord an amount equal to the estimated amount of such expenses for\nsuch year in equal monthly installments during such year with the installments\nof Base Monthly Rent.\n\nLandlord reserves the right to change from time to time the methods of billing\nTenant for any given expense or group of expenses or the periodic basis on which\nsuch expenses are billed.\n\n (a) Landlord's share of the consideration received by Tenant upon\ncertain assignments and sublettings as required by Article 7.\n\n (b) Any legal fees and costs that Tenant is obligated to pay or\nreimburse to Landlord pursuant to Article 13; and\n\n (c) Any other charges or reimbursements due Landlord from Tenant\npursuant to the terms of this Lease.\n\nNotwithstanding the foregoing, Landlord may elect by written notice to Tenant to\nhave Tenant pay Real Property Taxes or any portion thereof directly to the\napplicable taxing authority, in which case Tenant shall make such payments and\ndeliver satisfactory evidence of payment to Landlord no later than ten (10) days\nbefore such Real Property Taxes become delinquent.\n\n3.2 YEAR-END ADJUSTMENTS. If Landlord shall have elected to bill Tenant for the\nProperty Operating Expenses (or any group of such expenses) on an estimated\nbasis in accordance with the provisions of Paragraph 3.2(a)(iii) above, Landlord\nshall furnish to Tenant within three months following the end of the applicable\ncalendar or fiscal year, as the case may be, a statement setting forth (i) the\namount of such expenses paid or incurred during the just ended calendar or\nfiscal year, as appropriate, and (ii) the amount that Tenant has paid to\nLandlord for credit against such expenses for such period. If Tenant shall have\npaid more than its obligation for such expenses for the stated period, Landlord\nshall, at its election, either (i) credit the amount of such overpayment toward\nthe next ensuing payment or payments of Additional Rent that would otherwise be\ndue or (ii) refund in cash to Tenant the amount of such overpayment. If such\nyear-end statement shall show that Tenant did not pay its obligation for such\nexpenses in full, then Tenant shall pay to Landlord the amount of such\nunderpayment within ten days from Landlord's billing of same to Tenant. The\nprovisions of this Paragraph shall survive the expiration or sooner termination\nof this Lease.\n\n3.3 LATE CHARGE, AND INTEREST ON RENT IN DEFAULT. Tenant acknowledges that the\nlate payment by Tenant of any monthly installment of Base Monthly Rent or any\nAdditional Rent will cause Landlord to incur certain costs and expenses not\ncontemplated under this Lease, the exact amounts of which are extremely\ndifficult or impractical to fix. Such costs and expenses will include without\nlimitation, administration and collection costs and processing and accounting\nexpenses. Therefor, if any installment of Base Monthly Rent is not received by\nLandlord from Tenant within five (5) calendar days after the same becomes due,\nTenant shall immediately pay to Landlord a late charge in an amount equal to the\namount set forth in Article 1 as the \"Late Charge Amount,\" and if any Additional\nRent is not received by Landlord when the same becomes due, Tenant shall\nimmediately pay to Landlord a late charge in an\n\n\n\n 5.\n 6\n\namount equal to 5% of the Additional Rent not so paid. Landlord and Tenant agree\nthat this late charge represents a reasonable estimate of such costs and\nexpenses and is fair compensation to Landlord for the anticipated loss Landlord\nwould suffer by reason of Tenant's failure to make timely payment. In no event\nshall this provision for a late charge be deemed to grant to Tenant a grace\nperiod or extension of time within which to pay any rental installment or\nprevent Landlord from exercising any right or remedy available to Landlord upon\nTenant's failure to pay each rental installment due under this Lease when due,\nincluding the right to terminate this Lease. If any rent remains delinquent for\na period in excess of five (5) calendar days, then, in addition to such late\ncharge, Tenant shall pay to Landlord interest on any rent that is not so paid\nfrom said tenth day at the then maximum rate of interest not prohibited or made\nusurious by Law until paid.\n\n3.4 PAYMENT OF RENT. Except as specifically provided otherwise in this Lease,\nall rent shall be paid in lawful money of the United States, without any\nabatement, reduction or offset for any reason whatsoever, to Landlord at such\naddress as Landlord may designate from time to time. Tenant's obligation to pay\nBase Monthly Rent and all Additional Rent shall be appropriately prorated at the\ncommencement and expiration of the Lease Term. The failure by Tenant to pay any\nAdditional Rent as required pursuant to this Lease when due shall be treated the\nsame as a failure by Tenant to pay Base Monthly Rent when due, and Landlord\nshall have the same rights and remedies against Tenant as Landlord would have\nhad Tenant failed to pay the Base Monthly Rent when due.\n\n3.5 PREPAID RENT. Tenant shall, upon execution of this Lease, pay to Landlord\nthe amount set forth in Article 1 as \"First Month's Prepaid Rent\" as prepayment\nof rent for credit against the first payment of Base Monthly Rent due hereunder.\n\n3.6 SECURITY DEPOSIT.\n\n (a) Tenant shall deposit with Landlord, no later than the Lease\nCommencement Date, the amount set forth in Article 1 as the \"Security Deposit\"\nas security for the performance by Tenant of the terms of this Lease to be\nperformed by Tenant, and not as prepayment of rent. In the event (1) Tenant does\nnot elect to use the Additional Allowance as set forth in Section 4 of the Work\nLetter and (2) Tenant elects to fund any amount of the cost for the Tenant\nImprovements above the amount of the Tenant Improvement Allowance (such amount\nthe \"Tenant Contribution\") and provided that Tenant is not then in default (and\nhas never been in default) under this Lease, then following completion of the\nImprovement Work and payment in full by Tenant of the Tenant Contribution, the\nSecurity Deposit shall be reduced by an amount equal to the Tenant Contribution,\nup to a maximum of $573,006.75. In addition, in the event (i) Tenant reports net\nprofits for eight (8) consecutive quarters (as shown on its quarterly financial\nstatements prepared in accordance with generally accepted accounting\nprinciples), and (ii) Tenant has achieved a market capitalization of\n$8,000,000,000 for four (4) consecutive quarters (as shown on its quarterly\nfinancial statements prepared in accordance with generally accepted accounting\nprinciples) and provided that Tenant is not then in default (and has never been\nin default) under this Lease, upon Tenant's written request to Landlord (which\nrequest shall include supporting documentation), the Security Deposit shall be\nreduced to an amount equal to one month of the Base Monthly Rent then in effect.\n\n (b) Landlord may apply such portion or portions of the Security Deposit\nas are reasonably necessary for the following purposes: (i) to remedy any\ndefault by Tenant in the payment of Base Monthly Rent or Additional Rent or a\nlate charge or interest on defaulted rent, or any other monetary payment\nobligation of Tenant under this Lease; (ii) to repair damage to the Leased\nPremises, the Building or the Outside Areas caused or permitted to occur by\nTenant; (iii) to clean and restore and repair the Leased Premises, the Building\nor the Outside Areas following their surrender to Landlord if not surrendered in\nthe condition required pursuant to the provisions of Article 2, and (iv) to\nremedy any other default of Tenant to the extent permitted by Law including,\nwithout limitation, failure of Tenant to comply with the terms of Paragraph 6.4\nhereof. In this regard, Tenant hereby waives any restriction on the uses to\nwhich the Security Deposit may be applied as contained in Section 1950.7(c) of\nthe California Civil Code and\/or any successor statute. In the event the\nSecurity Deposit or any portion thereof is so used, Tenant shall pay to\nLandlord, promptly upon demand, an amount in cash sufficient to restore the\nSecurity Deposit to the full original sum. If Tenant fails to promptly restore\nthe Security Deposit and if Tenant shall have paid to Landlord any sums as \"Last\nMonth's Prepaid Rent,\" Landlord may, in addition to any other remedy Landlord\nmay have under this Lease, reduce the amount of Tenant's Last Month's Prepaid\nRent by transferring all or portions of such Last Month's Prepaid Rent to\nTenant's Security Deposit until such Security Deposit is restored to the amount\nset forth in Article 1. Landlord shall not be deemed a trustee of the Security\nDeposit. Landlord may use the Security Deposit in Landlord's ordinary business\nand shall not be required to segregate it from Landlord's general accounts.\nTenant shall not be entitled to any interest on the Security Deposit. If\nLandlord transfers the Building or the Property during the Lease Term, Landlord\nshall pay the Security Deposit to any subsequent owner in conformity with the\nprovisions of Section 1950.7 of the California Civil Code and\/or any successor\nstatute, in which event the transferring landlord shall be released from all\nliability for the return of the Security Deposit. Tenant specifically grants to\nLandlord (and Tenant hereby waives the provisions of California Civil Code\nSection 1950.7 to the contrary) a period of sixty (60) days following a\nsurrender of the Leased Premises by Tenant to Landlord within which to inspect\nthe Leased Premises, make required restorations and repairs, receive and verify\nworkmen's billings therefor, and prepare a final accounting with respect to the\nSecurity Deposit. In no event shall the Security Deposit or any portion thereof,\nbe considered prepaid rent.\n\n\n ARTICLE 4\n\n USE OF LEASED PREMISES AND OUTSIDE AREA\n\n4.1 PERMITTED USE. Tenant shall be entitled to use the Leased Premises solely\nfor the \"Permitted Use\" as set forth\n\n\n\n 6.\n 7\n\nin Article 1 and for no other purpose whatsoever. Tenant shall continuously and\nwithout interruption use the Leased Premises for such purpose for the entire\nLease Term. Any discontinuance of such use for a period of sixty consecutive\ncalendar days shall be, at Landlord's election, a default by Tenant under the\nterms of this Lease. Tenant shall have the right to use the Outside Areas in\nconjunction with its Permitted Use of the Leased Premises solely for the\npurposes for which they were designed and intended and for no other purposes\nwhatsoever. Tenant shall have no right of access, use or occupancy of the\nBuilding roof except as expressly permitted herein.\n\n4.2 GENERAL LIMITATIONS ON USE. Tenant shall not do or permit anything to be\ndone in or about the Leased Premises, the Building, the Outside Areas or the\nProperty which does or could (i) jeopardize the structural integrity of the\nBuilding or (ii) cause damage to any part of the Leased Premises, the Building,\nthe Outside Areas or the Property. Tenant shall not operate any equipment within\nthe Leased Premises which does or could (i) injure, vibrate or shake the Leased\nPremises or the Building, (ii) damage, overload or impair the efficient\noperation of any electrical, plumbing, heating, ventilating or air conditioning\nsystems within or servicing the Leased Premises or the Building, or (iii) damage\nor impair the efficient operation of the sprinkler system (if any) within or\nservicing the Leased Premises or the Building. Tenant shall not install any\nequipment or antennas on or make any penetrations of the exterior walls or roof\nof the Building except as expressly permitted herein. Tenant shall not affix any\nequipment to or make any penetrations or cuts in the floor, ceiling, walls or\nroof of the Leased Premises. Tenant shall not place any loads upon the floors,\nwalls, ceiling or roof systems which could endanger the structural integrity of\nthe Building or damage its floors, foundations or supporting structural\ncomponents. Tenant shall not place any explosive, flammable or harmful fluids or\nother waste materials in the drainage systems of the Leased Premises, the\nBuilding, the Outside Areas or the Property. Tenant shall not drain or discharge\nany fluids in the landscaped areas or across the paved areas of the Property.\nTenant shall not use any of the Outside Areas for the storage of its materials,\nsupplies, inventory or equipment and all such materials, supplies, inventory or\nequipment shall at all times be stored within the Leased Premises. Tenant shall\nnot commit nor permit to be committed any waste in or about the Leased Premises,\nthe Building, the Outside Areas or the Property.\n\n4.3 NOISE AND EMISSIONS. All noise generated by Tenant in its use of the Leased\nPremises shall be confined or muffled so that it does not interfere with the\nbusinesses of or annoy the occupants and\/or users of adjacent properties. All\ndust, fumes, odors and other emissions generated by Tenant's use of the Leased\nPremises shall be sufficiently dissipated in accordance with sound environmental\npractice and exhausted from the Leased Premises in such a manner so as not to\ninterfere with the businesses of or annoy the occupants and\/or users of adjacent\nproperties, or cause any damage to the Leased Premises, the Building, the\nOutside Areas or the Property or any component part thereof or the property of\nadjacent property owners.\n\n4.4 TRASH DISPOSAL. Tenant shall provide trash bins or other adequate garbage\ndisposal facilities within the trash enclosure areas provided or permitted by\nLandlord outside the Leased Premises sufficient for the interim disposal of all\nof its trash, garbage and waste. All such trash, garbage and waste temporarily\nstored in such areas shall be stored in such a manner so that it is not visible\nfrom outside of such areas, and Tenant shall cause such trash, garbage and waste\nto be regularly removed from the Property. Tenant shall keep the Leased Premises\nand the Outside Areas in a clean, safe and neat condition free and clear of all\nof Tenant's trash, garbage, waste and\/or boxes, pallets and containers\ncontaining same at all times.\n\n4.5 PARKING. Tenant shall have the use of all parking within the boundaries of\nthe Property. Tenant shall not, at any time, park or permit to be parked any\nrecreational vehicles, inoperative vehicles or equipment in the Outside Areas or\non any portion of the Property. Tenant agrees to assume responsibility for\ncompliance by its employees and invitees with the parking provisions contained\nherein. If Tenant or its employees park any vehicle within the Property in\nviolation of these provisions, then Landlord may, upon prior written notice to\nTenant giving Tenant one (1) day (or any applicable statutory notice period, if\nlonger than one (1) day) to remove such vehicle(s), in addition to any other\nremedies Landlord may have under this Lease, charge Tenant, as Additional Rent,\nand Tenant agrees to pay, as Additional Rent, One Hundred Dollars ($100) per day\nfor each day or partial day that each such vehicle is so parked within the\nProperty. Landlord reserves the right to grant easements and access rights to\nothers for use of the parking areas on the Property, provided that such grants\ndo not materially interfere with Tenant's use of the parking areas.\n\n4.6 SIGNS. Except for business identification signs permitted by this Paragraph\n4.6, Tenant shall not place or install on or within any portion of the Leased\nPremises, the exterior of the Building, the Outside Areas or the Property any\nsign, advertisement, banner, placard, or picture which is visible from the\nexterior of the Leased Premises. Tenant shall have the right to install a\nbuilding mounted business identification sign, subject to Landlord's prior\nwritten approval (which shall not be unreasonably withheld). Landlord agrees to\nuse its best efforts to assist Tenant in obtaining approval for such signage\nfrom the City of San Jose. Except for the foregoing, Tenant shall not place or\ninstall on or within any portion of the Leased Premises, the exterior of the\nBuilding, the Outside Areas or the Property any business identification sign\nwhich is visible from the exterior of the Leased Premises until Landlord shall\nhave approved in writing and in its sole discretion the location, size, content,\ndesign, method of attachment and material to be used in the making of such sign;\nprovided, however, that so long as such signs are normal and customary business\ndirectional or identification signs within the Building, Tenant shall not be\nrequired to obtain Landlord's approval. Any sign, once approved by Landlord,\nshall be installed at Tenant's sole cost and expense and only in strict\ncompliance with Landlord's approval and all Laws and requirements of the City of\nSan Jose, using a person approved by Landlord to install same. Landlord may\nremove any signs (which have not been approved in writing by Landlord),\nadvertisements, banners, placards or pictures so placed by Tenant on or within\nthe Leased Premises, the exterior of the Building, the Outside Areas or the\nProperty and charge to Tenant the cost of such removal, together with any costs\nincurred by Landlord to repair any damage caused thereby, including any cost\nincurred to restore the surface (upon which such sign was so affixed) to its\noriginal condition. Tenant shall remove\n\n\n\n 7.\n 8\n\nall of Tenant's signs, repair any damage caused thereby, and restore the surface\nupon which the sign was affixed to its original condition, all to Landlord's\nreasonable satisfaction, upon the termination of this Lease.\n\n4.7 COMPLIANCE WITH LAWS AND PRIVATE RESTRICTIONS. Tenant shall abide by and\nshall promptly observe and comply with, at its sole cost and expense, all Laws\nand Private Restrictions respecting the use and occupancy of the Leased\nPremises, the Building, the Outside Areas or the Property including, without\nlimitation, all Laws governing the use and\/or disposal of hazardous materials,\nand shall defend with competent counsel, indemnify and hold Landlord harmless\nfrom any claims, damages or liability resulting from Tenant's failure to so\nabide, observe, or comply. Tenant's obligations hereunder shall survive the\nexpiration or sooner termination of this Lease.\n\n4.8 COMPLIANCE WITH INSURANCE REQUIREMENTS. With respect to any insurance\npolicies required or permitted to be carried by Landlord in accordance with the\nprovisions of this Lease, Tenant shall not conduct nor permit any other person\nto conduct any activities nor keep, store or use (or allow any other person to\nkeep, store or use) any item or thing within the Leased Premises, the Building,\nthe Outside Areas or the Property which (i) is prohibited under the terms of any\nsuch policies, (ii) could result in the termination of the coverage afforded\nunder any of such policies, (iii) could give to the insurance carrier the right\nto cancel any of such policies, or (iv) could cause an increase in the rates\n(over standard rates) charged for the coverage afforded under any of such\npolicies. Tenant shall comply with all requirements of any insurance company,\ninsurance underwriter, or Board of Fire Underwriters which are necessary to\nmaintain, at standard rates, the insurance coverages carried by either Landlord\nor Tenant pursuant to this Lease.\n\n4.9 LANDLORD'S RIGHT TO ENTER. Landlord and its agents shall have the right to\nenter the Leased Premises during normal business hours after giving Tenant\nreasonable notice and subject to Tenant's reasonable security measures for the\npurpose of (i) inspecting the same; (ii) showing the Leased Premises to\nprospective purchasers, mortgagees or tenants; (iii) making necessary\nalterations, additions or repairs; and (iv) performing any of Tenant's\nobligations when Tenant has failed to do so. Landlord shall have the right to\nenter the Leased premises during normal business hours (or as otherwise agreed),\nsubject to Tenant's reasonable security measures, for purposes of supplying any\nmaintenance or services agreed to be supplied by Landlord. Landlord shall have\nthe right to enter the Outside Areas during normal business hours for purposes\nof (i) inspecting the exterior of the Building and the Outside Areas; (ii)\nposting notices of nonresponsibility (and for such purposes Tenant shall provide\nLandlord at least thirty days' prior written notice of any work to be performed\non the Leased Premises); and (iii) supplying any services to be provided by\nLandlord. Any entry into the Leased Premises or the Outside Areas obtained by\nLandlord in accordance with this paragraph shall not under any circumstances be\nconstrued or deemed to be a forcible or unlawful entry into, or a detainer of,\nthe Leased Premises, or an eviction, actual or constructive of Tenant from the\nLeased Premises or any portion thereof.\n\n4.10 USE OF OUTSIDE AREAS. Tenant, in its use of the Outside Areas, shall at all\ntimes keep the Outside Areas in a safe condition free and clear of all\nmaterials, equipment, debris, trash (except within existing enclosed trash\nareas), inoperable vehicles, and other items which are not specifically\npermitted by Landlord to be stored or located thereon by Tenant. If, in the\nopinion of Landlord, unauthorized persons are using any of the Outside Areas by\nreason of, or under claim of, the express or implied authority or consent of\nTenant, then Tenant, upon demand of Landlord, shall restrain, to the fullest\nextent then allowed by Law, such unauthorized use, and shall initiate such\nappropriate proceedings as may be required to so restrain such use. Landlord\nreserves the right to grant easements and access rights to others for use of the\nOutside Areas and shall not be liable to Tenant for any diminution in Tenant's\nright to use the Outside Areas as a result.\n\n4.11 ENVIRONMENTAL PROTECTION. Tenant's obligations under this Section 4.11\nshall survive the expiration or termination of this Lease.\n\n (a) As used herein, the term \"Hazardous Materials\" shall mean any toxic\nor hazardous substance, material or waste or any pollutant or infectious or\nradioactive material, including but not limited to those substances, materials\nor wastes regulated now or in the future under any of the following statutes or\nregulations and any and all of those substances included within the definitions\nof \"hazardous substances,\" \"hazardous materials,\" \"hazardous waste,\" \"hazardous\nchemical substance or mixture,\" \"imminently hazardous chemical substance or\nmixture,\" \"toxic substances,\" \"hazardous air pollutant,\" \"toxic pollutant,\" or\n\"solid waste\" in the (a) Comprehensive Environmental Response, Compensation and\nLiability Act of 1990 (\"CERCLA\" or \"Superfund\"), as amended by the Superfund\nAmendments and Reauthorization Act of 1986 (\"SARA\"), 42 U.S.C. Section 9601 et\nseq., (b) Resource Conservation and Recovery Act of 1976 (\"RCRA\"), 42 U.S.C.\nSection 6901 et seq., (c) Federal Water Pollution Control Act (\"FSPCA\"), 33\nU.S.C. Section 1251 et seq., (d) Clean Air Act (\"CAA\"), 42 U.S.C. Section 7401\net seq., (e) Toxic Substances Control Act (\"TSCA\"), 14 U.S.C. Section 2601 et\nseq., (f) Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et\nseq., (g) Carpenter-Presley-Tanner Hazardous Substance Account Act (\"California\nSuperfund\"), Cal. Health & Safety Code Section 25300 et seq., (h) California\nHazardous Waste Control Act, Cal. Health & Safety code Section 25100 et seq.,\n(i) Porter-Cologne Water Quality Control Act (\"Porter-Cologne Act\"), Cal. Water\nCode Section 13000 et seq., (j) Hazardous Waste Disposal Land Use Law, Cal.\nHealth & Safety codes Section 25220 et seq., (k) Safe Drinking Water and Toxic\nEnforcement Act of 1986 (\"Proposition 65\"), Cal. Health & Safety code Section\n25249.5 et seq., (l) Hazardous Substances Underground Storage Tank Law, Cal.\nHealth & Safety code Section 25280 et seq., (m) Air Resources Law, Cal. Health & Safety Code Section 39000 et seq., and (n) regulations promulgated pursuant to\nsaid laws or any replacement thereof, or as similar terms are defined in the\nfederal, state and local laws, statutes, regulations, orders or rules. Hazardous\nMaterials shall also mean any and all other biohazardous wastes and substances,\nmaterials and wastes which are, or in the future become, regulated under\napplicable Laws for the protection of health or the environment, or which are\nclassified as hazardous or toxic substances, materials or wastes, pollutants or\ncontaminants, as defined, listed or regulated by any federal, state or local\nlaw, regulation or order or by common law decision, including, without\n\n\n\n 8.\n 9\n\nlimitation, (i) trichloroethylene, tetrachloroethylene, perchloroethylene and\nother chlorinated solvents, (ii) any petroleum products or fractions thereof,\n(iii) asbestos, (iv) polychlorinted biphenyls, (v) flammable explosives, (vi)\nurea formaldehyde, (vii) radioactive materials and waste, and (viii) materials\nand wastes that are harmful to or may threaten human health, ecology or the\nenvironment.\n\n (b) Notwithstanding anything to the contrary in this Lease, Tenant, at\nits sole cost, shall comply with all Laws relating to the storage, use and\ndisposal of Hazardous Materials; provided, however, that Tenant shall not be\nresponsible for contamination of the Leased Premises by Hazardous Materials\nexisting as of the date the Leased Premises are delivered to Tenant (whether\nbefore or after the Scheduled Delivery Date) unless caused by Tenant. Tenant\nshall not store, use or dispose of any Hazardous Materials except for those\nHazardous Materials listed in a Hazardous Materials management plan (\"HMMP\")\nwhich Tenant shall deliver to Landlord upon execution of this Lease and update\nat least annually with Landlord (\"Permitted Materials\") which may be used,\nstored and disposed of provided (i) such Permitted Materials are used, stored,\ntransported, and disposed of in strict compliance with applicable laws, (ii)\nsuch Permitted Materials shall be limited to the materials listed on and may be\nused only in the quantities specified in the HMMP, and (iii) Tenant shall\nprovide Landlord with copies of all material safety data sheets and other\ndocumentation required under applicable Laws in connection with Tenant's use of\nPermitted Materials as and when such documentation is provided to any regulatory\nauthority having jurisdiction, in no event shall Tenant cause or permit to be\ndischarged into the plumbing or sewage system of the Building or onto the land\nunderlying or adjacent to the Building any Hazardous Materials. Tenant shall be\nsolely responsible for and shall defend, indemnify, and hold Landlord and its\nagents harmless from and against all claims, costs and liabilities, including\nattorneys' fees and costs, arising out of or in connection with Tenant's\nstorage, use and\/or disposal of Hazardous Materials. If the presence of\nHazardous Materials on the Leased Premises caused or permitted by Tenant results\nin contamination or deterioration of water or soil, then Tenant shall promptly\ntake any and all action necessary to clean up such contamination, but the\nforegoing shall in no event be deemed to constitute permission by Landlord to\nallow the presence of such Hazardous Materials. At any time prior to the\nexpiration of the Lease Term if Tenant has a reasonable basis to suspect that\nthere has been any release or the presence of Hazardous Materials in the ground\nor ground water on the Leased Premises which did not exist upon commencement of\nthe Lease Term, Tenant shall have the right to conduct appropriate tests of\nwater and soil and to deliver to Landlord the results of such tests to\ndemonstrate that no contamination in excess of permitted levels has occurred as\na result of Tenant's use of the Leased Premises. Tenant shall further be solely\nresponsible for, and shall defend, indemnify, and hold Landlord and its agents\nharmless from and against all claims, costs and liabilities, including\nattorneys' fees and costs, arising out of or in connection with any removal,\ncleanup and restoration work and materials required hereunder to return the\nLeased Premises and any other property of whatever nature to their condition at\nthe time the Leased Premises were delivered to Tenant.\n\n (c) Upon termination or expiration of the Lease, Tenant at its sole\nexpense shall cause all Hazardous Materials placed in or about the Leased\nPremises, the Building and\/or the Property by Tenant, its agents, contractors,\nor invitees, and all installations (whether interior or exterior) made by or on\nbehalf of Tenant relating to the storage, use, disposal or transportation of\nHazardous Materials to be removed from the property and transported for use,\nstorage or disposal in accordance and compliance with all Laws and other\nrequirements respecting Hazardous Materials used or permitted to be used by\nTenant. Tenant shall apply for and shall obtain from all appropriate regulatory\nauthorities (including any applicable fire department or regional water quality\ncontrol board) all permits, approvals and clearances necessary for the closure\nof the Property and shall take all other actions as may be required to complete\nthe closure of the Building and the Property. In addition, prior to vacating the\nLeased Premises, Tenant shall undertake and submit to Landlord an environmental\nsite assessment from an environmental consulting company reasonably acceptable\nto Landlord which site assessment shall evidence Tenant's compliance with this\nParagraph 4.11.\n\n (d) At any time prior to expiration of the Lease term, subject to\nreasonable prior notice (not less than forty-eight (48) hours) and Tenant's\nreasonable security requirements and provided such activities do not\nunreasonably interfere with the conduct of Tenant's business at the Leased\nPremises, Landlord shall have the right to enter in and upon the Property,\nBuilding and Leased Premises in order to conduct appropriate tests of water and\nsoil to determine whether levels of any Hazardous Materials in excess of legally\npermissible levels has occurred as a result of Tenant's use thereof. Landlord\nshall furnish copies of all such test results and reports to Tenant and, at\nTenant's option and cost, shall permit split sampling for testing and analysis\nby Tenant. Such testing shall be at Tenant's expense if Landlord has a\nreasonable basis for suspecting and confirms the presence of Hazardous Materials\nin the soil or surface or ground water in, on, under, or about the Property, the\nBuilding or the Leased Premises, which has been caused by or resulted from the\nactivities of Tenant, its agents, contractors, or invitees.\n\n (e) Landlord may voluntarily cooperate in a reasonable manner with the\nefforts of all governmental agencies in reducing actual or potential\nenvironmental damage. Tenant shall not be entitled to terminate this Lease or to\nany reduction in or abatement of rent by reason of such compliance or\ncooperation. Tenant agrees at all times to cooperate fully with the requirements\nand recommendations of governmental agencies regulating, or otherwise involved\nin, the protection of the environment.\n\n4.12 RULES AND REGULATIONS. In the event Redback Networks Inc. is no longer the\nsole tenant of the Leased Premises, Landlord shall have the right from time to\ntime to establish reasonable rules and regulations and\/or amendments or\nadditions thereto respecting the use of the Leased Premises and the Outside\nAreas for the care and orderly management of the Property. Upon delivery to\nTenant of a copy of such rules and regulations or any amendments or additions\nthereto, Tenant shall comply with such rules and regulations. A violation by\nTenant of any of such rules and regulations shall constitute a default by Tenant\nunder this Lease. If there is a conflict between the rules and regulations and\nany of the provisions of this Lease, the provisions of this Lease shall prevail.\nLandlord\n\n\n\n 9.\n 10\n\nshall not be responsible or liable to Tenant for the violation of such rules and\nregulations by any other tenant of the Property.\n\n4.12 RESERVATIONS. Landlord reserves the right from time to time to grant,\nwithout the consent or joinder of Tenant, such easements, rights of way and\ndedications that Landlord deems necessary, and to cause the recordation of\nparcel maps and restrictions, so long as such easements, rights of way and\ndedications not unreasonably interfere with the use of the Leased Premises by\nTenant. Tenant agrees to execute any documents reasonably requested by Landlord\nto effectuate any such easement rights, dedications, maps or restrictions.\n\n4.13 ROOF. Notwithstanding any provision of this Lease to the contrary, Landlord\nhereby reserves to itself and its designees rights of access, use and occupancy\nof the Building roof, and Tenant shall have no right of access, use or occupancy\nof the Building roof except as permitted herein and except to the extent\nrequired in order to enable Tenant to perform Tenant's maintenance and repair\nobligations pursuant to this Lease. Subject to Tenant's restoration and repair\nobligations under Paragraph 2.6, Tenant shall have the right to install antennae\nand equipment on the Building roof in an area designated by Landlord no larger\nthan 20 feet by 20 feet.\n\n\n ARTICLE 5\n\n REPAIRS, MAINTENANCE, SERVICES AND UTILITIES\n\n5.1 REPAIR AND MAINTENANCE. Except in the case of damage to or destruction of\nthe Leased Premises, the Building, the Outside Areas or the Property caused by\nan act of God or other peril, in which case the provisions of Article 10 shall\ncontrol, the parties shall have the following obligations and responsibilities\nwith respect to the repair and maintenance of the Leased Premises, the Building,\nthe Outside Areas, and the Property.\n\n (a) TENANT'S OBLIGATIONS. Tenant shall, at all times during the Lease\nTerm and at its sole cost and expense, regularly clean and continuously keep and\nmaintain in good order, condition and repair the Leased Premises and every part\nthereof including, without limiting the generality of the foregoing, (i) all\ninterior walls, floors and ceilings, (ii) all windows, doors and skylights,\n(iii) all electrical wiring, conduits, connectors and fixtures, (iv) all\nplumbing, pipes, sinks, toilets, faucets and drains, (v) all lighting fixtures,\nbulbs and lamps and all heating, ventilating and air conditioning equipment, and\n(vi) all entranceways to the Leased Premises. Tenant, if requested to do so by\nLandlord, shall hire, at Tenant's sole cost and expense, a licensed heating,\nventilating and air conditioning contractor to regularly and periodically (not\nless frequently than every three months) inspect and perform required\nmaintenance on the heating, ventilating and air conditioning equipment and\nsystems serving the Leased Premises, or alternatively, Landlord may, at its\nelection, contract in its own name for such regular and periodic inspections of\nand maintenance on such heating, ventilating and air conditioning equipment and\nsystems and charge to Tenant, as Additional Rent, the cost thereof. Tenant, if\nrequested to do so by Landlord, shall hire, at Tenant's sole cost and expense, a\nlicensed roofing contractor to regularly and periodically (not less frequently\nthan every three months) inspect and perform required maintenance on the roof of\nthe Leased Premises, or alternatively, Landlord may, at its election, contract\nin its own name for such regular and periodic inspections of and maintenance on\nthe roof and charge to Tenant, as Additional Rent, the cost thereof. Tenant\nshall, at all times during the Lease Term, keep in a clean and safe condition\nthe Outside Areas. Tenant shall regularly and periodically sweep and clean the\ndriveways and parking areas. Tenant shall, at its sole cost and expense, repair\nall damage to the Leased Premises, the Building, the Outside Areas or the\nProperty caused by the activities of Tenant, its employees, invitees or\ncontractors promptly following written notice from Landlord to so repair such\ndamages. If Tenant shall fail to perform the required maintenance or fail to\nmake repairs required of it pursuant to this paragraph within a reasonable\nperiod of time following notice from Landlord to do so, then Landlord may, at\nits election and without waiving any other remedy it may otherwise have under\nthis Lease or at law, perform such maintenance or make such repairs and charge\nto Tenant, as Additional Rent, the costs so incurred by Landlord for same. All\nglass within or a part of the Leased Premises, both interior and exterior, is at\nthe sole risk of Tenant and any broken glass shall promptly be replaced by\nTenant at Tenant's expense with glass of the same kind, size and quality.\n\n (b) LANDLORD'S OBLIGATION. Landlord shall, at its sole cost and\nexpense, at all times during the Lease Term, maintain and repair the foundation,\nthe roof structure and the load-bearing and exterior walls of the Building.\nLandlord shall repair and maintain the roof membrane of the Building as needed\nand charge to Tenant, as part of Property Maintenance Costs, the costs incurred\nby Landlord in performing such maintenance and\/or making such repairs.\n\n5.2 UTILITIES. Tenant shall arrange at its sole cost and expense and in its own\nname, for the supply of gas and electricity to the Leased Premises. In the event\nthat such services are not separately metered, Tenant shall, at its sole\nexpense, cause such meters to be installed. Landlord shall maintain the water\nmeter(s) in its own name; provided, however, that if at any time during the\nLease Term Landlord shall require Tenant to put the water service in Tenant's\nname, Tenant shall do so at Tenant's sole cost. Tenant shall be responsible for\ndetermining if the local supplier of water, gas and electricity can supply the\nneeds of Tenant and whether or not the existing water, gas and electrical\ndistribution systems within the Building and the Leased Premises are adequate\nfor Tenant's needs. Tenant shall be responsible for determining if the existing\nsanitary and storm sewer systems now servicing the Leased Premises and the\nProperty are adequate for Tenant's needs. Tenant shall pay all charges for\nwater, gas, electricity and storm and sanitary sewer services as so supplied to\nthe Leased Premises, irrespective of whether or not the services are maintained\nin Landlord's or Tenant's name.\n\n5.3 SECURITY. Tenant acknowledges that Landlord has not undertaken any duty\nwhatsoever to provide security for the Leased Premises, the Building, the\nOutside Areas or the Property and, accordingly, Landlord is not responsible\n\n\n\n 10.\n 11\n\nfor the security of same or the protection of Tenant's property or Tenant's\nemployees, invitees or contractors. To the extent Tenant determines that such\nsecurity or protection services are advisable or necessary, Tenant shall arrange\nfor and pay the costs of providing same.\n\n5.4 ENERGY AND RESOURCE CONSUMPTION. Landlord may voluntarily cooperate in a\nreasonable manner with the efforts of governmental agencies and\/or utility\nsuppliers in reducing energy or other resource consumption within the Property,\nprovided that such cooperation does not materially and adversely impact Tenant's\nuse of the Leased Premises. Tenant shall not be entitled to terminate this Lease\nor to any reduction in or abatement of rent by reason of such compliance or\ncooperation. Tenant agrees at all times to cooperate fully with Landlord and to\nabide by all reasonable rules established by Landlord in order to comply with\nthe requirements of utility suppliers and governmental agencies regulating the\nconsumption of energy and\/or other resources.\n\n5.5 LIMITATION OF LANDLORD'S LIABILITY. Landlord shall not be liable to Tenant\nfor injury to Tenant, its employees, agents, invitees or contractors, damage to\nTenant's property or loss of Tenant's business or profits, nor shall Tenant be\nentitled to terminate this Lease or to any reduction in or abatement of rent by\nreason of (i) Landlord's failure to provide security services or systems within\nthe Property for the protection of the Leased Premises, the Building or the\nOutside Areas, or the protection of Tenant's property or Tenant's employees,\ninvitees, agents or contractors, or (ii) Landlord's failure to perform any\nmaintenance or repairs to the Leased Premises, the Building, the Outside Areas\nor the Property until Tenant shall have first notified Landlord, in writing, of\nthe need for such maintenance or repairs, and then only after Landlord shall\nhave had a reasonable period of time following its receipt of such notice within\nwhich to perform such maintenance or repairs, or (iii) any failure,\ninterruption, rationing or other curtailment in the supply of water, electric\ncurrent, gas or other utility service to the Leased Premises, the Building, the\nOutside Areas or the Property from whatever cause (other than Landlord's gross\nnegligence or willful misconduct), or (iv) the unauthorized intrusion or entry\ninto the Leased Premises by third parties (other than Landlord).\n\n\n ARTICLE 7\n\n ALTERATIONS AND IMPROVEMENTS\n\n7.1 BY TENANT. Tenant shall not make any alterations to or modifications of the\nLeased Premises or construct any improvements within the Leased Premises until\nLandlord shall have first approved, in writing, the plans and specifications\ntherefor, which approval may be withheld in Landlord's reasonable discretion.\nLandlord's approval shall be deemed given if not denied by Landlord in a written\nnotice to Tenant delivered within fifteen (15) days following receipt of\nTenant's written request. Tenant's written request shall also contain a request\nfor Landlord to elect whether or not it will require Tenant to remove the\nsubject alterations, modifications or improvements at the expiration or earlier\ntermination of this Lease. If such additional request is not included, Landlord\nmay make such election at the expiration or earlier termination of this Lease\n(and for purposes of Tenant's removal obligations set forth in Section 2.6\nabove, Landlord shall be deemed to have made the election at the time the\nalterations, modifications or improvements were completed). All such\nmodifications, alterations or improvements, once so approved, shall be made,\nconstructed or installed by Tenant at Tenant's expense (including all permit\nfees and governmental charges related thereto), using a licensed contractor\nfirst approved by Landlord, in substantial compliance with the Landlord-approved\nplans and specifications therefor. All work undertaken by Tenant shall be done\nin accordance with all Laws and in a good and workmanlike manner using new\nmaterials of good quality. Tenant shall not commence the making of any such\nmodifications or alterations or the construction of any such improvements until\n(i) all required governmental approvals and permits shall have been obtained,\n(ii) all requirements regarding insurance imposed by this Lease have been\nsatisfied, (iii) Tenant shall have given Landlord at least five (5) business\ndays prior written notice of its intention to commence such work so that\nLandlord may post and file notices of non-responsibility, and (iv) if requested\nby Landlord, Tenant shall have obtained contingent liability and broad form\nbuilder's risk insurance in an amount satisfactory to Landlord in its reasonable\ndiscretion to cover any perils relating to the proposed work not covered by\ninsurance carried by Tenant pursuant to Article 9. In no event shall Tenant make\nany modification, alterations or improvements whatsoever to the Outside Areas or\nthe exterior or structural components of the Building including, without\nlimitation, any cuts or penetrations in the floor, roof or exterior walls of the\nLeased Premises. As used in this Article, the term \"modifications, alterations\nand\/or improvements\" shall include, without limitation, the installation of\nadditional electrical outlets, overhead lighting fixtures, drains, sinks,\npartitions, doorways, or the like. Notwithstanding the foregoing, Tenant,\nwithout Landlord's prior written consent, shall be permitted to make\nnon-structural alterations to the Building, provided that: (a) such alterations\ndo not exceed $50,000 individually or $200,000 in the aggregate, (b) Tenant\nshall timely provide Landlord the notice no less than ten (10) days prior to\ncommencing such alterations , (c) Tenant shall notify Landlord in writing within\nthirty (30) days of completion of the alteration and deliver to Landlord a set\nof the plans and specifications therefor, either \"as built\" or marked to show\nconstruction changes made, and (d) Tenant shall, upon Landlord's request, remove\nthe alteration at the termination of the Lease and restore the Leased Premises\nto their condition prior to such alteration.\n\n7.2 OWNERSHIP OF IMPROVEMENTS. All modifications, alterations and\nimprovements made or added to the Leased Premises by Tenant (other than Tenant's\ninventory, equipment, movable furniture, wall decorations and trade fixtures)\nshall be deemed real property and a part of the Leased Premises, but shall\nremain the property of Tenant during the Lease, and Tenant hereby covenants and\nagrees not to grant a security interest in any such items to any party other\nthan Landlord. Any such modifications, alterations or improvements, once\ncompleted, shall not be altered or removed from the Leased Premises during the\nLease Term without Landlord's written approval first obtained in accordance with\nthe provisions of Paragraph 6.1 above. At the expiration or sooner termination\nof this Lease, all such modifications, alterations and improvements other than\nTenant's inventory, equipment, movable \n\n\n\n 11.\n 12\n\nfurniture, wall decorations and trade fixtures, shall automatically become the\nproperty of Landlord and shall be surrendered to Landlord as part of the Leased\nPremises as required pursuant to Article 2, unless Landlord shall require Tenant\nto remove any of such modifications, alterations or improvements in accordance\nwith the provisions of Article 2, in which case Tenant shall so remove same.\nLandlord shall have no obligations to reimburse Tenant for all or any portion of\nthe cost or value of any such modifications, alterations or improvements so\nsurrendered to Landlord. All modifications, alterations or improvements which\nare installed or constructed on or attached to the Leased Premises by Landlord\nand\/or at Landlord's expense shall be deemed real property and a part of the\nLeased Premises and shall be property of Landlord. All lighting, plumbing,\nelectrical, heating, ventilating and air conditioning fixtures, partitioning,\nwindow coverings, wall coverings and floor coverings installed by Tenant shall\nbe deemed improvements to the Leased Premises and not trade fixtures of Tenant.\n\n7.3 ALTERATIONS REQUIRED BY LAW. Tenant shall make all modifications,\nalterations and improvements to the Leased Premises, at its sole cost, that are\nrequired by any Law because of (i) Tenant's use or occupancy of the Leased\nPremises, the Building, the Outside Areas or the Property, (ii) Tenant's\napplication for any permit or governmental approval, or (iii) Tenant's making of\nany modifications, alterations or improvements to or within the Leased Premises.\nIf Landlord shall, at any time during the Lease Term, be required by any\ngovernmental authority to make any modifications, alterations or improvements to\nthe Building or the Property, or if due to any change in those Laws applicable\nto commercial buildings generally, capital improvements are required to the\nLeased Premises (except for modifications, alterations or improvements covered\nby (i), (ii) or (iii) above) Landlord shall perform such modifications,\nalterations or improvements and the cost incurred by Landlord in making such\nmodifications, alterations or improvements, including interest at a rate equal\nto the greater of (a) 12%, or (b) the sum of that rate quoted by Wells Fargo\nBank, N.T. & S.A. from time to time as its prime rate, plus two percent (2%)\n(\"Wells Prime Plus Two\") (but in no event more than the maximum rate of interest\nnot prohibited or made usurious), shall be amortized by Landlord over the useful\nlife of such modifications, alterations or improvements, as determined in\naccordance with generally accepted accounting principles, and the monthly\namortized cost of such modifications, alterations and improvements as so\namortized shall be considered a Property Maintenance Cost.\n\n7.4 LIENS. Tenant shall keep the Property and every part thereof free from any\nlien, and shall pay when due all bills arising out of any work performed,\nmaterials furnished, or obligations incurred by Tenant, its agents, employees or\ncontractors relating to the Property. If any such claim of lien is recorded\nagainst Tenant's interest in this Lease, the Property or any part thereof,\nTenant shall bond against, discharge or otherwise cause such lien to be entirely\nreleased within ten days after the same has been recorded. Tenant's failure to\ndo so shall be conclusively deemed a material default under the terms of this\nLease.\n\n\n ARTICLE 8\n\n ASSIGNMENT AND SUBLETTING BY TENANT\n\n8.1 BY TENANT. Tenant shall not sublet the Leased Premises or any portion\nthereof or assign its interest in this Lease, whether voluntarily or by\noperation of Law, without Landlord's prior written consent which shall not be\nunreasonably withheld. Any attempted subletting or assignment without Landlord's\nprior written consent, at Landlord's election, shall constitute a default by\nTenant under the terms of this Lease. The acceptance of rent by Landlord from\nany person or entity other than Tenant, or the acceptance of rent by Landlord\nfrom Tenant with knowledge of a violation of the provisions of this paragraph,\nshall not be deemed to be a waiver by Landlord of any provision of this Article\nor this Lease or to be a consent to any subletting by Tenant or any assignment\nof Tenant's interest in this Lease. Without limiting the circumstances in which\nit may be reasonable for Landlord to withhold its consent to an assignment or\nsubletting, Landlord and Tenant acknowledge that it shall be reasonable for\nLandlord to withhold its consent in the following instances:\n\n (a) the proposed assignee or sublessee is a governmental agency;\n\n (b) in Landlord's reasonable judgment, the use of the Leased Premises\nby the proposed assignee or sublessee would involve occupancy by other than for\na Permitted Use, would entail any alterations which would lessen the value of\nthe leasehold improvements in the Leased Premises, or would require increased\nservices by Landlord;\n\n (c) in Landlord's reasonable judgment, the financial worth of the\nproposed assignee is less than that of Tenant or does not meet the credit\nstandards applied by Landlord;\n\n (d) the proposed assignee or sublessee (or any of its affiliates) has\nbeen in material default under a lease, has been in litigation with a previous\nlandlord, or in the ten years prior to the assignment or sublease has filed for\nbankruptcy protection, has been the subject of an involuntary bankruptcy, or has\nbeen adjudged insolvent;\n\n (e) Landlord has experienced a previous default by or is in litigation\nwith the proposed assignee or sublessee;\n\n (f) in Landlord's reasonable judgment, the Leased Premises, or the\nrelevant part thereof, will be used in a manner that will violate any negative\ncovenant as to use contained in this Lease;\n\n (g) the use of the Leased Premises by the proposed assignee or\nsublessee will violate any applicable law, ordinance or regulation;\n\n\n\n 12.\n 13\n\n (h) the proposed assignee or sublessee is, as of the date of this\nLease, a tenant in the Building;\n\n (i) the proposed assignment or sublease fails to include all of the\nterms and provisions required to be included therein pursuant to this Article 7;\n\n (j) Tenant is in default of any obligation of Tenant under this Lease,\nor Tenant has defaulted under this Lease on three or more occasions during the\n12 months preceding the date that Tenant shall request consent; or\n\n (k) in the case of a subletting of less than the entire Leased\nPremises, if the subletting would result in the division of the Leased Premises\ninto more than two subparcels or would require improvements to be made outside\nof the Leased Premises.\n\n8.2 MERGER, REORGANIZATION, OR SALE OF ASSETS. Any dissolution, merger,\nconsolidation or other reorganization of Tenant, or the sale or other transfer\nin the aggregate over the Lease Term of a controlling percentage of the capital\nstock of Tenant, or the sale or transfer of all or a substantial portion of the\nassets of Tenant, shall be deemed a voluntary assignment of Tenant's interest in\nthis Lease. The phrase \"controlling percentage\" means the ownership of and the\nright to vote stock possessing more than fifty percent of the total combined\nvoting power of all classes of Tenant's capital stock issued, outstanding and\nentitled to vote for the election of directors. If Tenant is a partnership, a\nwithdrawal or change, voluntary, involuntary or by operation of Law, of any\ngeneral partner, or the dissolution of the partnership, shall be deemed a\nvoluntary assignment of Tenant's interest in this Lease. Upon Landlord's request\nfrom time to time, Tenant shall promptly provide Landlord with a statement\ncertified by the Tenant's chief operating officer, which shall provide the\nfollowing information: (a) the names of all of Tenant's shareholders and their\nownership interests at the time thereof, provided Tenant's shares are not\npublicly traded; (b) the state in which Tenant is incorporated; (c) the location\nof Tenant's principal place of business; (d) information regarding a material\nchange in the corporate structure of Tenant, including, without limitation, a\nmerger or consolidation; and (e) any other information regarding Tenant's\nownership that Landlord reasonably requests. Notwithstanding the foregoing,\nTenant may, without Landlord's prior written consent and without being subject\nto any of the provisions of this Article 7, including without limitation,\nLandlord's right to recapture any portion of the Leased Premises, sublet the\nLeased Premises or assign this Lease to (individually, a \"Permitted Assignee,\"\ncollectively, \"Permitted Assignees\"): (i) a subsidiary, affiliate, division,\ncorporation or joint venture controlling, controlled by or under common control\nwith Tenant; (ii) a successor corporation related to Tenant by merger,\nconsolidation, nonbankruptcy reorganization, or government action; or (iii)\nTenant, after the sale or transfer of a controlling percentage of the capital\nstock of Tenant; provided that any Permitted Assignee under (i), (ii) or (iii)\nabove has a market capitalization on the effective date of the assignment or\nsublease which is equal to or greater than Tenant.\n\n8.3 LANDLORD'S ELECTION. If Tenant shall desire to assign its interest under the\nLease or to sublet the Leased Premises, Tenant must first notify Landlord, in\nwriting, of its intent to so assign or sublet, at least thirty (30) days in\nadvance of the date it intends to so assign its interest in this Lease or sublet\nthe Leased Premises but not sooner than one hundred eighty days in advance of\nsuch date, specifying in detail the terms of such proposed assignment or\nsubletting, including the name of the proposed assignee or sublessee, the\nproperty assignee's or sublessee's intended use of the Leased Premises, current\nfinancial statements (including a balance sheet, income statement and statement\nof cash flow, all prepared in accordance with generally accepted accounting\nprinciples) of such proposed assignee or sublessee, the form of documents to be\nused in effectuating such assignment or subletting and such other information as\nLandlord may reasonably request. Landlord shall have a period of ten (10)\nbusiness days following receipt of such notice and the required information\nwithin which to do one of the following: (i) consent to such requested\nassignment or subletting subject to Tenant's compliance with the conditions set\nforth in Paragraph 7.4 below, or (ii) refuse to so consent to such requested\nassignment or subletting, provided that such consent shall not be unreasonably\nrefused, or (iii) terminate this Lease as to the portion (including all) of the\nLeased Premises that is the subject of the proposed assignment or subletting if\nTenant proposes to assign or sublet fifty percent (50%) or more of the total\nspace leased by Tenant from Landlord in the Project (pursuant to this Lease and\nall other leases between Landlord and Tenant). During such ten (10) business day\nperiod, Tenant covenants and agrees to supply to Landlord, upon request, all\nnecessary or relevant information which Landlord may reasonably request\nrespecting such proposed assignment or subletting and\/or the proposed assignee\nor sublessee.\n\n8.4 CONDITIONS TO LANDLORD'S CONSENT. If Landlord elects to consent, or shall\nhave been ordered to so consent by a court of competent jurisdiction, to such\nrequested assignment or subletting, such consent shall be expressly conditioned\nupon the occurrence of each of the conditions below set forth, and any purported\nassignment or subletting made or ordered prior to the full and complete\nsatisfaction of each of the following conditions shall be void and, at the\nelection of Landlord, which election may be exercised at any time following such\na purported assignment or subletting but prior to the satisfaction of each of\nthe stated conditions, shall constitute a material default by Tenant under this\nLease until cured by satisfying in full each such condition by the assignee or\nsublessee. The conditions are as follows:\n\n (a) Landlord having approved in form and substance the assignment or\nsublease agreement and any ancillary documents, which approval shall not be\nunreasonably withheld by Landlord if the requirements of this Article 7 are\notherwise complied with.\n\n (b) Each such sublessee or assignee having agreed, in writing\nsatisfactory to Landlord and its counsel and for the benefit of Landlord, to\nassume, to be bound by, and to perform the obligations of this Lease to be\nperformed by Tenant which relate to space being subleased.\n\n\n\n 13.\n 14\n\n (c) Tenant having fully and completely performed all of its obligations\nunder the terms of this Lease through and including the date of such assignment\nor subletting.\n\n (d) Tenant having reimbursed to Landlord all reasonable costs and\nreasonable attorneys' fees incurred by Landlord in conjunction with the\nprocessing and documentation of any such requested subletting or assignment.\n\n (e) Tenant having delivered to Landlord a complete and fully-executed\nduplicate original of such sublease agreement or assignment agreement (as\napplicable) and all related agreements.\n\n (f) Tenant having paid, or having agreed in writing to pay as to future\npayments, to Landlord the assignment consideration or excess rentals to be paid\nto Tenant or to any other on Tenant's behalf or for Tenant's benefit for such\nassignment or subletting as follows:\n\n (i) If Tenant assigns its interest under this Lease and if all or a\nportion of the consideration for such assignment is to be paid by the assignee\nat the time of the assignment, that Tenant shall have paid to Landlord and\nLandlord shall have received an amount equal to fifty percent (50%) of the\nassignment consideration so paid or to be paid (whichever is the greater) at the\ntime of the assignment by the assignee; or\n\n (ii) If Tenant assigns its interest under this Lease and if Tenant\nis to receive all or a portion of the consideration for such assignment in\nfuture installments, that Tenant and Tenant's assignee shall have entered into a\nwritten agreement with and for the benefit of Landlord satisfactory to Landlord\nand its counsel whereby Tenant and Tenant's assignee jointly agree to pay to\nLandlord an amount equal to fifty percent (50%) of all such future assignment\nconsideration installments to be paid by such assignee as and when such\nassignment consideration is so paid.\n\n (iii) If Tenant subleases the Leased Premises, that Tenant and\nTenant's sublessee shall have entered into a written agreement with and for the\nbenefit of Landlord satisfactory to Landlord and its counsel whereby Tenant and\nTenant's sublessee jointly agree to pay to Landlord fifty percent (50%) of all\nexcess rentals to be paid by such sublessee as and when such excess rentals are\nso paid.\n\nNotwithstanding the foregoing, in the event either (1) Tenant has assigned or\nproposes to assign its interest in this Lease and any other lease between\nLandlord and Tenant for space in the Project equal to or exceeding 99,870 square\nfeet; or (2) Tenant has sublet or proposes to sublet 99,870 or more square feet\nof the total space in the Project leased by Tenant (pursuant to this Lease and\nall other leases between Landlord and Tenant), then Landlord shall be entitled\nto one hundred percent (100%) of the assignment consideration or excess rentals,\nas applicable, in connection with any assignment or sublease, payable as set\nforth in (i) through (iii) above.\n\n8.4 ASSIGNMENT CONSIDERATION AND EXCESS RENTALS DEFINED. For purposes of this\nArticle, including any amendment to this Article by way of addendum or other\nwriting, the term \"assignment consideration\" shall mean all consideration to be\npaid by the assignee to Tenant or to any other party on Tenant's behalf or for\nTenant's benefit as consideration for such assignment, after deduction for\nreasonable leasing commissions and reasonable legal fees paid by Tenant in\nconnection with such assignment but without deductions for any other costs or\nexpenses (including, without limitation, tenant improvements, capital\nimprovements, building upgrades, permit fees, and other consultants' fees)\nincurred by Tenant in connection with such assignment, and the term \"excess\nrentals\" shall mean all consideration to be paid by the sublessee to Tenant or\nto any other party on Tenant's behalf or for Tenant's benefit for the sublease\nof all or any portion of the Leased Premises in excess of the rent due to\nLandlord under the terms of this Lease for the portion so subleased for the same\nperiod, after deduction for reasonable leasing commissions and reasonable legal\nfees paid by Tenant in connection with such assignment but without deductions\nfor any other costs or expenses (including, without limitation, tenant\nimprovements, capital improvements, building upgrades, permit fees, and other\nconsultants' fees) incurred by Tenant in connection with such sublease. Tenant\nagrees that the portion of any assignment consideration and\/or excess rentals\narising from any assignment or subletting by Tenant which is to be paid to\nLandlord pursuant to this Article now is and shall then be the property of\nLandlord and not the property of Tenant.\n\n8.5 PAYMENTS. All payments required by this Article to be made to Landlord shall\nbe made in cash in full as and when they become due. At the time Tenant,\nTenant's assignee or sublessee makes each such payment to Landlord, Tenant or\nTenant's assignee or sublessee, as the case may be, shall deliver to Landlord an\nitemized statement in reasonable detail showing the method by which the amount\ndue Landlord was calculated and certified by the party making such payment as\ntrue and correct.\n\n8.6 GOOD FAITH. The rights granted to Tenant by this Article are granted in\nconsideration of Tenant's express covenant that all pertinent allocations which\nare made by Tenant between the rental value of the Leased Premises and the value\nof any of Tenant's personal property which may be conveyed or leased generally\nconcurrently with and which may reasonably be considered a part of the same\ntransaction as the permitted assignment or subletting shall be made fairly,\nhonestly and in good faith. If Tenant shall breach this covenant, Landlord may\nimmediately declare Tenant to be in default under the terms of this Lease and\nterminate this Lease and\/or exercise any other rights and remedies Landlord\nwould have under the terms of this Lease in the case of a material default by\nTenant under this Lease.\n\n8.7 EFFECT OF LANDLORD'S CONSENT. No subletting or assignment, even with the\nconsent of Landlord, shall relieve Tenant of its personal and primary obligation\nto pay rent and to perform all of the other obligations to be performed\n\n\n\n 14.\n 15\n\nby Tenant hereunder. Consent by Landlord to one or more assignments of Tenant's\ninterest in this Lease or to one or more sublettings of the Leased Premises\nshall not be deemed to be a consent to any subsequent assignment or subletting.\nIf Landlord shall have been ordered by a court of competent jurisdiction to\nconsent to a requested assignment or subletting, or such an assignment or\nsubletting shall have been ordered by a court of competent jurisdiction over the\nobjection of Landlord, such assignment or subletting shall not be binding\nbetween the assignee (or sublessee) and Landlord until such time as all\nconditions set forth in Paragraph 7.4 above have been fully satisfied (to the\nextent not then satisfied) by the assignee or sublessee, including, without\nlimitation, the payment to Landlord of all agreed assignment considerations\nand\/or excess rentals then due Landlord.\n\n\n ARTICLE 10\n\n LIMITATION ON LANDLORD'S LIABILITY AND INDEMNITY\n\n10.1 LIMITATION ON LANDLORD'S LIABILITY AND RELEASE. Landlord shall not be\nliable to Tenant for, and Tenant hereby releases Landlord and its partners,\nprincipals, members, officers, agents, employees, lenders, attorneys, and\nconsultants from, any and all liability, whether in contract, tort or on any\nother basis, for any injury to or any damage sustained by Tenant, Tenant's\nagents, employees, contractors or invitees, any damage to Tenant's property, or\nany loss to Tenant's business, loss of Tenant's profits or other financial loss\nof Tenant resulting from or attributable to the condition of, the management of,\nthe repair or maintenance of, the protection of, the supply of services or\nutilities to, the damage in or destruction of the Leased Premises, the Building,\nthe Property or the Outside Areas, including without limitation (i) the failure,\ninterruption, rationing or other curtailment or cessation in the supply of\nelectricity, water, gas or other utility service to the Property, the Building\nor the Leased Premises; (ii) the vandalism or forcible entry into the Building\nor the Leased Premises; (iii) the penetration of water into or onto any portion\nof the Leased Premises; (iv) the failure to provide security and\/or adequate\nlighting in or about the Property, the Building or the Leased Premises, (v) the\nexistence of any design or construction defects within the Property, the\nBuilding or the Leased Premises; (vi) the failure of any mechanical systems to\nfunction properly (such as the HVAC systems); (vii) the blockage of access to\nany portion of the Property, the Building or the Leased Premises, except that\nTenant does not so release Landlord from such liability to the extent such\ndamage was proximately caused by Landlord's active negligence, willful\nmisconduct, or Landlord's failure to perform an obligation expressly undertaken\npursuant to this Lease after a reasonable period of time shall have lapsed\nfollowing receipt of written notice from Tenant to so perform such obligation.\nIn this regard, Tenant acknowledges that it is fully apprised of the provisions\nof Law relating to releases, and particularly to those provisions contained in\nSection 1542 of the California Civil Code which reads as follows:\n\n \"A general release does not extend to claims which the\n creditor does not know or suspect to exist in his favor at the\n time of executing the release, which if known by him must have\n materially affected his settlement with the debtor.\"\n\nNotwithstanding such statutory provision, and for the purpose of implementing a\nfull and complete release and discharge, Tenant hereby (i) waives the benefit of\nsuch statutory provision and (ii) acknowledges that, subject to the exceptions\nspecifically set forth herein, the release and discharge set forth in this\nparagraph is a full and complete settlement and release and discharge of all\nclaims and is intended to include in its effect, without limitation, all claims\nwhich Tenant, as of the date hereof, does not know of or suspect to exist in its\nfavor.\n\n10.2 TENANT'S INDEMNIFICATION OF LANDLORD. Tenant shall defend with competent\ncounsel satisfactory to Landlord any claims made or legal actions filed or\nthreatened against Landlord with respect to the violation of any Law, or the\ndeath, bodily injury, personal injury, property damage, or interference with\ncontractual or property rights suffered by any third party occurring within the\nLeased Premises or resulting from Tenant's use or occupancy of the Leased\nPremises, the Building or the Outside Areas, or resulting from Tenant's\nactivities in or about the Leased Premises, the Building, the Outside Areas or\nthe Property, and Tenant shall indemnify and hold Landlord, Landlord's partners,\nprincipals, members, employees, agents and contractors harmless from any loss\nliability, penalties, or expense whatsoever (including any loss attributable to\nvacant space which otherwise would have been leased, but for such activities)\nresulting therefrom, except to the extent proximately caused by the active\nnegligence or willful misconduct of Landlord or Landlord's default under this\nLease (after notice and opportunity to cure as specified in Paragraph 12.3).\nThis indemnity agreement shall survive the expiration or sooner termination of\nthis Lease.\n\n\n ARTICLE 12\n\n INSURANCE\n\n12.1 TENANT'S INSURANCE. Tenant shall maintain insurance complying with all of\nthe following:\n\n (a) Tenant shall procure, pay for and keep in full force and\neffect, at all times during the Lease Term, the following:\n\n (i) Commercial general liability insurance insuring Tenant\nagainst liability for personal injury, bodily injury, death and damage to\nproperty occurring within the Leased Premises, or resulting from Tenant's use or\noccupancy of the Leased Premises, the Building, the Outside Areas or the\nProperty, or resulting from Tenant's activities in or about the Leased Premises\nor the Property, with coverage in an amount equal to Tenant's Required Liability\nCoverage (as set forth in Article 1), which insurance shall contain \"blanket\ncontractual liability\" and \"broad form property damage\" endorsements insuring\nTenant's performance of Tenant's\n\n\n\n 15.\n 16\n\nobligations to indemnify Landlord as contained in this Lease.\n\n (i) Fire and property damage insurance in special form coverage\ninsuring Tenant against loss from physical damage to Tenant's personal property,\ninventory, trade fixtures and improvements within the Leased Premises with\ncoverage for the full actual replacement cost thereof;\n\n (ii) Business income\/extra expense insurance sufficient to pay\nBase Monthly Rent and Additional Rent for a period of not less than twelve (12)\nmonths;\n\n (iii) Plate glass insurance, at actual replacement cost;\n\n (iv) Boiler and machinery insurance, to limits sufficient to\nrestore the Building;\n\n (v) Product liability insurance (including, without limitation,\nif food and\/or beverages are distributed, sold and\/or consumed within the Leased\nPremises, to the extent obtainable, coverage for liability arising out of the\ndistribution, sale, use or consumption of food and\/or beverages (including\nalcoholic beverages, if applicable) at the Leased Premises for not less than\nTenant's Required Liability Coverage (as set forth in Article 1);\n\n (vi) Workers' compensation insurance (statutory coverage) with\nemployer's liability in amounts not less than $1,000,000 insurance sufficient to\ncomply with all laws; and\n\n (vii) With respect to making of any alterations or\nmodifications or the construction of improvements or the like undertaken by\nTenant, course of construction, commercial general liability, automobile\nliability and workers' compensation (to be carried by Tenant's contractor), in\nan amount and with coverage reasonably satisfactory to Landlord.\n\n (b) Each policy of liability insurance required to be carried by Tenant\npursuant to this paragraph or actually carried by Tenant with respect to the\nLeased Premises or the Property: (i) shall, except with respect to insurance\nrequired by subparagraph (a)(vii) above, name Landlord, and such others as are\ndesignated by Landlord, as additional insureds; (ii) shall be primary insurance\nproviding that the insurer shall be liable for the full amount of the loss, up\nto and including the total amount of liability set forth in the declaration of\ncoverage, without the right of contribution from or prior payment by any other\ninsurance coverage of Landlord; (iii) shall be in a form satisfactory to\nLandlord; (iv) shall be carried with companies reasonably acceptable to Landlord\nwith Best's ratings of at least A and XI; (v) shall provide that such policy\nshall not be subject to cancellation, lapse or change except after at least\nthirty (30) days prior written notice to Landlord, and (vi) shall contain a\nso-called \"severability\" or \"cross liability\" endorsement. Each policy of\nproperty insurance maintained by Tenant with respect to the Leased Premises or\nthe Property or any property therein (i) shall provide that such policy shall\nnot be subject to cancellation, lapse or change except after at least thirty\n(30) days prior written notice to Landlord and (ii) shall contain a waiver\nand\/or a permission to waive by the insurer of any right of subrogation against\nLandlord, its partners, principals, members, officers, employees, agents and\ncontractors, which might arise by reason of any payment under such policy or by\nreason of any act or omission of Landlord, its partners, principals, members,\nofficers, employees, agents and contractors.\n\n (c) Prior to the time Tenant or any of its contractors enters the\nLeased Premises, Tenant shall deliver to Landlord, with respect to each policy\nof insurance required to be carried by Tenant pursuant to this Article, a copy\nof such policy (appropriately authenticated by the insurer as having been\nissued, premium paid) or a certificate of the insurer certifying in form\nsatisfactory to Landlord that a policy has been issued, premium paid, providing\nthe coverage required by this Paragraph and containing the provisions specified\nherein. With respect to each renewal or replacement of any such insurance, the\nrequirements of this Paragraph must be complied with not less than thirty days\nprior to the expiration or cancellation of the policies being renewed or\nreplaced. Landlord may, at any time and from time to time, inspect and\/or copy\nany and all insurance policies required to be carried by Tenant pursuant to this\nArticle. If Landlord's Lender, insurance broker, advisor or counsel reasonably\ndetermines at any time that the amount of coverage set forth in Paragraph 9.1(a)\nfor any policy of insurance Tenant is required to carry pursuant to this Article\nis not adequate, then Tenant shall increase the amount of coverage for such\ninsurance to such greater amount as Landlord's Lender, insurance broker, advisor\nor counsel reasonably deems adequate.\n\n12.2 LANDLORD'S INSURANCE. With respect to insurance maintained by Landlord:\n\n (a) Landlord shall maintain, as the minimum coverage required of it by\nthis Lease, fire and property damage insurance in special form coverage insuring\nLandlord (and such others as Landlord may designate) against loss from physical\ndamage to the Building with coverage of not less than one hundred percent (100%)\nof the full actual replacement cost thereof and against loss of rents for a\nperiod of not less than six months. Such fire and property damage insurance, at\nLandlord's election but without any requirements on Landlord's behalf to do so,\n(i) may be written in so-called \"all risk\" form, excluding only those perils\ncommonly excluded from such coverage by Landlord's then property damage insurer;\n(ii) may provide coverage for physical damage to the improvements so insured for\nup to the entire full actual replacement cost thereof; (iii) may be endorsed to\ncover loss or damage caused by any additional perils against which Landlord may\nelect to insure, including earthquake and\/or flood; and\/or (iv) may provide\ncoverage for loss of rents for a period of up to twelve months. Landlord shall\nnot be required to cause such insurance to cover any of Tenant's personal\nproperty, inventory, and trade fixtures, or any modifications, alterations or\nimprovements made or constructed by Tenant to or within the Leased Premises.\n\n\n\n 16.\n 17\n\nLandlord shall use commercially reasonable efforts to obtain such insurance at\ncompetitive rates.\n\n (b) Landlord shall maintain commercial general liability insurance\ninsuring Landlord (and such others as are designated by Landlord) against\nliability for personal injury, bodily injury, death, and damage to property\noccurring in, on or about, or resulting from the use or occupancy of the\nProperty, or any portion thereof, with combined single limit coverage of at\nleast Ten Million Dollars ($10,000,000). Landlord may carry such greater\ncoverage as Landlord or Landlord's Lender, insurance broker, advisor or counsel\nmay from time to time determine is reasonably necessary for the adequate\nprotection of Landlord and the Property.\n\n (c) Landlord may maintain any other insurance which in the opinion of\nits insurance broker, advisor or legal counsel is prudent in carry under the\ngiven circumstances, provided such insurance is commonly carried by owners of\nproperty similarly situated and operating under similar circumstances.\n\n12.3 MUTUAL WAIVER OF SUBROGATION. Landlord hereby releases Tenant, its\nrespective partners, principals, members, officers, agents, employees and\nservants, and Tenant hereby releases Landlord and its respective partners,\nprincipals, members, officers, agents, employees and servants, from any and all\nliability for loss, damage or injury to the property of the other in or about\nthe Leased Premises or the Property which is caused by or results from a peril\nor event or happening which is covered by insurance required to be carried by\nthis Lease and in force at the time of the loss by the party sustaining such\nloss; provided, however, that such waiver shall be effective only to the extent\npermitted by the insurance covering such loss and to the extent such insurance\nis not prejudiced thereby.\n\n\n ARTICLE 14\n\n DAMAGE TO LEASED PREMISES\n\n14.1 LANDLORD'S DUTY TO RESTORE. If the Leased Premises, the Building or the\nOutside Area are damaged by any peril after the Effective Date of this Lease,\nLandlord shall restore the same, as and when required by this paragraph, unless\nthis Lease is terminated by Landlord pursuant to Paragraph 10.3 or by Tenant\npursuant to Paragraph 10.4. If this Lease is not so terminated, then upon the\nissuance of all necessary governmental permits, Landlord shall commence and\ndiligently prosecute to completion the restoration of the Leased Premises, the\nBuilding or the Outside Area, as the case may be, to the extent then allowed by\nlaw, to substantially the same condition in which it existed as of the Lease\nCommencement Date. Landlord's obligation to restore shall be limited to the\nimprovements constructed by Landlord. Landlord shall have no obligation to\nrestore any alterations, modifications or improvements made by Tenant to the\nLeased Premises or any of Tenant's personal property, inventory or trade\nfixtures. Upon completion of the restoration by Landlord, Tenant shall forthwith\nreplace or fully repair all of Tenant's personal property, inventory, trade\nfixtures and other improvements constructed by Tenant to like or similar\nconditions as existed at the time immediately prior to such damage or\ndestruction.\n\n14.2 INSURANCE PROCEEDS. All insurance proceeds available from the fire and\nproperty damage insurance carried by Landlord shall be paid to and become the\nproperty of Landlord. If this Lease is terminated pursuant to either Paragraph\n10.3 or 10.4, all insurance proceeds available from insurance carried by Tenant\nwhich cover loss of property that is Landlord's property or was paid for with\nthe Tenant Improvement Allowance (as set forth in the Work Letter) or was\ninstalled or constructed by Landlord shall be paid to and become the property of\nLandlord, and the remainder of such proceeds shall be paid to and become the\nproperty of Tenant. If this Lease is not terminated pursuant to either Paragraph\n10.3 or 10.4, all insurance proceeds available from insurance carried by Tenant\nwhich cover loss to property that is Landlord's property shall be paid to and\nbecome the property of Landlord, and all proceeds available from such insurance\nwhich cover loss to property which would only become the property of Landlord\nupon the termination of this Lease shall be paid to and remain the property of\nTenant. The determination of Landlord's property and Tenant's property shall be\nmade pursuant to Paragraph 6.2.\n\n14.3 LANDLORD'S RIGHT TO TERMINATE. Landlord shall have the option to terminate\nthis Lease in the event any of the following occurs, which option may be\nexercised only by delivery to Tenant of a written notice of election to\nterminate within thirty days after the date of such damage or destruction:\n\n (a) The Building is damaged by any peril covered by valid and\ncollectible insurance actually carried by Landlord and in force at the time of\nsuch damage or destruction (an \"insured peril\") to such an extent that the\nestimated cost to restore the Building exceeds the lesser of (i) the insurance\nproceeds (less any deductible amount) available from insurance actually carried\nby Landlord, or (ii) fifty percent of the then actual replacement cost thereof;\n\n (b) The Building is damaged by an uninsured peril whose repair cost\nexceeds ten percent (10%) of the replacement cost of the Building, which peril\nLandlord was not required to insure against pursuant to the provisions of\nArticle 9 of this Lease.\n\n (c) The Building is damaged by any peril and, because of the laws then\nin force, the Building (i) cannot be restored at reasonable cost or (ii) if\nrestored, cannot be used for the same use being made thereof before such damage.\n\n14.4 TENANT'S RIGHT TO TERMINATE. If the Leased Premises, the Building or the\nOutside Area are damaged by any peril and Landlord does not elect to terminate\nthis Lease or is not entitled to terminate this Lease pursuant to this Article,\nthen as soon as reasonably practicable, Landlord shall furnish Tenant with the\nwritten opinion of Landlord's architect or construction consultant as to when\nthe restoration work required of Landlord may be complete. Tenant\n\n\n\n 17.\n 18\n\nshall have the option to terminate this Lease in the event any of the following\noccurs, which option may be exercised only by delivery to Landlord of a written\nnotice of election to terminate within twenty (20) days after Tenant receives\nfrom Landlord the estimate of the time needed to complete such restoration:\n\n (a) If the time estimated to substantially complete the restoration\nexceeds twelve months from and after the date the architect's or construction\nconsultant's written opinion is delivered; or\n\n (b) If the damage occurred within twelve months of the last day of the\nLease Term and the time estimated to substantially complete the restoration\nexceeds one hundred eighty days from and after the date such restoration is\ncommenced.\n\n14.4 TENANT'S WAIVER. Landlord and Tenant agree that the provisions of Paragraph\n10.4 above, captioned \"Tenant's Right To Terminate\", are intended to supersede\nand replace the provisions contained in California Civil Code, Section 1932,\nSubdivision 2, and California Civil Code, Section 1934, and accordingly, Tenant\nhereby waives the provisions of such Civil Code Sections and the provisions of\nany successor Civil Code Sections or similar laws hereinafter enacted.\n\n14.5 ABATEMENT OF RENT. In the event of damage to the Leased Premises which does\nnot result in the termination of this Lease, the Base Monthly Rent (and any\nAdditional Rent) shall be temporarily abated during the period of restoration in\nproportion in the degree to which Tenant's use of the Leased Premises is\nimpaired by such damage.\n\n\n ARTICLE 15\n\n CONDEMNATION\n\n15.1 TENANT'S RIGHT TO TERMINATE. Except as otherwise provided in Paragraph 11.4\nbelow regarding temporary takings, Tenant shall have the option to terminate\nthis Lease if, as a result of any taking, (i) all of the Leased Premises is\ntaken, or (ii) twenty-five percent (25%) or more of the Leased Premises is taken\nand the part of the Leased Premises that remains cannot, within a reasonable\nperiod of time, be made reasonably suitable for the continued operation of\nTenant's business. Tenant must exercise such option within a reasonable period\nof time, to be effective on the later to occur of (i) the date that possession\nof that portion of the Leased Premises that is condemned is taken by the\ncondemnor or (ii) the date Tenant vacated the Leased Premises.\n\n15.2 LANDLORD'S RIGHT TO TERMINATE. Except as otherwise provided in Paragraph\n11.4 below regarding temporary takings, Landlord shall have the option to\nterminate this Lease if, as a result of any taking, (i) all of the Leased\nPremises is taken, (ii) twenty-five percent (25%) or more of the Leased Premises\nis taken and the part of the Leased Premises that remains cannot, within a\nreasonable period of time, be made reasonably suitable for the continued\noperation of Tenant's business, or (iii) because of the laws then in force, the\nLeased Premises may not be used for the same use being made before such taking,\nwhether or not restored as required by Paragraph 11.3 below. Any such option to\nterminate by Landlord must be exercised within a reasonable period of time, to\nbe effective as of the date possession is taken by the condemnor.\n\n15.3 RESTORATION. If any part of the Leased Premises or the Building is taken\nand this Lease is not terminated, then Landlord shall, to the extent not\nprohibited by laws then in force, repair any damage occasioned thereby to the\nremainder thereof to a condition reasonably suitable for Tenant's continued\noperations and otherwise, to the extent practicable, in the manner and to the\nextent provided in Paragraph 10.1.\n\n15.4 TEMPORARY TAKING. If a portion of the Leased Premises is temporarily taken\nfor a period of one year or less and such period does not extend beyond the\nLease Expiration Date, this Lease shall remain in effect. If any portion of the\nLeased Premises is temporarily taken for a period which exceeds one year or\nwhich extends beyond the Lease Expiration Date, then the rights of Landlord and\nTenant shall be determined in accordance with Paragraphs 11.1 and 11.2 above.\n\n15.5 DIVISION OF CONDEMNATION AWARD. Any award made for any taking of the\nProperty, the Building, or the Leased Premises, or any portion thereof, shall\nbelong to and be paid to Landlord, and Tenant hereby assigns to Landlord all of\nits right, title and interest in any such award; provided, however, that Tenant\nshall be entitled to receive any portion of the award that is made specifically\n(i) for the taking of personal property, inventory or trade fixtures belonging\nto Tenant, (ii) for the interruption of Tenant's business or its moving costs,\nor (iii) for the value of any leasehold improvements installed and paid for by\nTenant. The rights of Landlord and Tenant regarding any condemnation shall be\ndetermined as provided in this Article, and each party hereby waives the\nprovisions of Section 1265.130 of the California Code of Civil Procedure, and\nthe provisions of any similar law hereinafter enacted, allowing either party to\npetition the Supreme Court to terminate this Lease and\/or otherwise allocate\ncondemnation awards between Landlord and Tenant in the event of a taking of the\nLeased Premises.\n\n15.6 ABATEMENT OF RENT. In the event of a taking of the Leased Premises which\ndoes not result in a termination of this Lease (other than a temporary taking),\nthen, as of the date possession is taken by the condemning authority, the Base\nMonthly Rent shall be reduced in the same proportion that the area of that part\nof the Leased Premises so taken (less any addition to the area of the Leased\nPremises by reason of any reconstruction) bears to the area of the Leased\nPremises immediately prior to such taking.\n\n15.7 TAKING DEFINED. The term \"taking\" or \"taken\" as used in this Article 11\nshall mean any transfer or conveyance of all or any portion of the Property to a\npublic or quasi-public agency or other entity having the power of eminent\n\n\n\n 18.\n 19\n\ndomain pursuant to or as a result of the exercise of such power by such an\nagency, including any inverse condemnation and\/or any sale or transfer by\nLandlord of all or any portion of the Property to such an agency under threat of\ncondemnation or the exercise of such power. Landlord and Tenant shall each give\nthe other prompt notice after receiving notice of a proposed taking.\n\n\n ARTICLE 16\n\n DEFAULT AND REMEDIES\n\n16.1 EVENTS OF TENANT'S DEFAULT. Tenant shall be in default of its obligations\nunder this Lease if any of the following events occur:\n\n (a) Tenant shall have failed to pay Base Monthly Rent or any Additional\nRent when due; or\n\n (b) Tenant shall have done or permitted to be done any act, use or\nthing in its use, occupancy or possession of the Leased Premises or the Building\nor the Outside Areas which is prohibited by the terms of this Lease; or\n\n (c) Tenant shall have failed to perform any term, covenant or condition\nof this Lease (except those requiring the payment of Base Monthly Rent or\nAdditional Rent, which failures shall be governed by subparagraph (a) above)\nwithin thirty (30) days after written notice from Landlord to Tenant specifying\nthe nature of such failure and requesting Tenant to perform same; or\n\n (d) Tenant shall have sublet the Leased Premises or assigned or\nencumbered its interest in this Lease in violation of the provisions contained\nin Article 7, whether voluntarily or by operation of law; or\n\n (e) Tenant shall have abandoned the Leased Premises; or\n\n (f) Tenant or any Guarantor of this Lease shall have permitted or\nsuffered the sequestration or attachment of, or execution on, or the appointment\nof a custodian or receiver with respect to, all or any substantial part of the\nproperty or assets of Tenant (or such Guarantor) or any property or asset\nessential to the conduct of Tenant's (or such Guarantor's) business, and Tenant\n(or such Guarantor) shall have failed to obtain a return or release of the same\nwithin thirty days thereafter, or prior to sale pursuant to such sequestration,\nattachment or levy, whichever is earlier; or\n\n (g) Tenant or any Guarantor of this Lease shall have made a general\nassignment of all or a substantial part of its assets for the benefit of its\ncreditors; or\n\n (h) Tenant or any Guarantor of this Lease shall have allowed (or\nsought) to have entered against it a decree or order which: (i) grants or\nconstitutes an order for relief, appointment of a trustee, or condemnation or a\nreorganization plan under the bankruptcy laws of the United States; (ii)\napproves as properly filed a petition seeking liquidation or reorganization\nunder said bankruptcy laws or any other debtor's relief law or similar statute\nof the United States or any state thereof; or (iii) otherwise directs the\nwinding up or liquidation of Tenant; provided, however, if any decree or order\nwas entered without Tenant's consent or over Tenant's objection, Landlord may\nnot terminate this Lease pursuant to this Subparagraph if such decree or order\nis rescinded or reversed within thirty days after its original entry; or\n\n (i) Tenant or any Guarantor of this Lease shall have availed itself of\nthe protection of any debtor's relief law, moratorium law or other similar law\nwhich does not require the prior entry of a decree or order.\n\n16.7 LANDLORD'S REMEDIES. In the event of any default by Tenant, and without\nlimiting Landlord's right to indemnification as provided in Article 8.2,\nLandlord shall have the following remedies, in addition to all other rights and\nremedies provided by law or otherwise provided in this Lease, to which Landlord\nmay resort cumulatively, or in the alternative:\n\n (a) Landlord may, at Landlord's election, keep this Lease in effect and\nenforce, by an action at law or in equity, all of its rights and remedies under\nthis Lease including, without limitation, (i) the right to recover the rent and\nother sums as they become due by appropriate legal action, (ii) the right to\nmake payments required by Tenant, or perform Tenant's obligations and be\nreimbursed by Tenant for the cost thereof with interest at the then maximum rate\nof interest not prohibited by law from the date the sum is paid by Landlord\nuntil Landlord is reimbursed by Tenant, and (iii) the remedies of injunctive\nrelief and specific performance to prevent Tenant from violating the terms of\nthis Lease and\/or to compel Tenant to perform its obligations under this Lease,\nas the case may be.\n\n (b) Landlord may, at Landlord's election, terminate this Lease by\ngiving Tenant written notice of termination, in which event this Lease shall\nterminate on the date set forth for termination in such notice, in which event\nTenant shall immediately surrender the Leased Premises to Landlord, and if\nTenant fails to do so, Landlord may, without prejudice to any other remedy which\nit may have for possession or arrearages in rent, enter upon and take possession\nof the Leased Premises and expel or remove Tenant and any other person who may\nbe occupying the Leased Premises or any part thereof, without being liable for\nprosecution or any claim or damages therefor. Any termination under this\nsubparagraph shall not relieve Tenant from its obligation to pay to Landlord all\nBase Monthly Rent and Additional Rent then or thereafter due, or any other sums\ndue or thereafter accruing to Landlord, or from\n\n\n\n 19.\n 20\n\nany claim against Tenant for damages previously accrued or then or thereafter\naccruing. In no event shall any one or more of the following actions by\nLandlord, in the absence of a written election by Landlord to terminate this\nLease constitute a termination of this Lease:\n\n (i) Appointment of a receiver or keeper in order to protect\nLandlord's interest hereunder;\n\n (ii) Consent to any subletting of the Leased Premises or assignment\nof this Lease by Tenant, whether pursuant to the provisions hereof or otherwise;\nor\n\n (iii) Any action taken by Landlord or its partners, principals,\nmembers, officers, agents, employees, or servants, which is intended to mitigate\nthe adverse effects of any breach of this Lease by Tenant, including, without\nlimitation, any action taken to maintain and preserve the Leased Premises on any\naction taken to relet the Leased Premises or any portion thereof for the account\nat Tenant and in the name of Tenant.\n\n (c) In the event Tenant breaches this Lease and abandons the Leased\nPremises, Landlord may terminate this Lease, but this Lease shall not terminate\nunless Landlord gives Tenant written notice of termination. If Landlord does not\nterminate this Lease by giving written notice of termination, Landlord may\nenforce all its rights and remedies under this Lease, including the right and\nremedies provided by California Civil Code Section 1951.4 (\"lessor may continue\nlease in effect after lessee's breach and abandonment and recover rent as it\nbecomes due, if lessee has right to sublet or assign, subject only to reasonable\nlimitations\"), as in effect on the Effective Date of this Lease.\n\n (d) In the event Landlord terminates this Lease, Landlord shall be\nentitled, at Landlord's election, to the rights and remedies provided in\nCalifornia Civil Code Section 1951.2, as in effect on the Effective Date of this\nLease. For purposes of computing damages pursuant to Section 1951.2, an interest\nrate equal to the maximum rate of interest then not prohibited by law shall be\nused where permitted. Such damages shall include, without limitation:\n\n (i) The worth at the time of the award of the unpaid rent which had\nbeen earned at the time of termination;\n\n (ii) The worth at the time of award of the amount by which the\nunpaid rent for the balance of the term after the time of award exceeds the\namount of such rental loss that Tenant proves could be reasonably avoided,\ncomputed by discounting such amount at the discount rate of the Federal Reserve\nBank of San Francisco, at the time of award plus one percent; and\n\n (iii) Any other amount necessary to compensate Landlord for all\ndetriment proximately caused by Tenant's failure to perform Tenant's obligations\nunder this Lease, or which in the ordinary course of things would be likely to\nresult therefrom, including without limitation, the following: (i) expenses for\ncleaning, repairing or restoring the Leased Premises, (ii) expenses for\naltering, remodeling or otherwise improving the Leased Premises for the purpose\nof reletting, including removal of existing leasehold improvements and\/or\ninstallation of additional leasehold improvements (regardless of how the same is\nfunded, including reduction of rent, a direct payment or allowance to a new\ntenant, or otherwise), (iii) broker's fees allocable to the remainder of the\nterm of this Lease, advertising costs and other expenses of reletting the Leased\nPremises; (iv) costs of carrying and maintaining the Leased Premises, such as\ntaxes, insurance premiums, utility charges and security precautions, (v)\nexpenses incurred in removing, disposing of and\/or storing any of Tenant's\npersonal property, inventory or trade fixtures remaining therein; (vi)\nreasonable attorney's fees, expert witness fees, court costs and other\nreasonable expenses incurred by Landlord (but not limited to taxable costs) in\nretaking possession of the Leased Premises, establishing damages hereunder, and\nreleasing the Leased Premises; and (vii) any other expenses, costs or damages\notherwise incurred or suffered as a result of Tenant's default.\n\n16.2 LANDLORD'S DEFAULT AND TENANT'S REMEDIES. In the event Landlord fails to\nperform its obligations under this Lease, Landlord shall nevertheless not be in\ndefault under the terms of this Lease until such time as Tenant shall have first\ngiven Landlord written notice specifying the nature of such failure to perform\nits obligations, and then only after Landlord shall have had thirty (30) days\nfollowing its receipt of such notice within which to perform such obligations;\nprovided that, if longer than thirty (30) days is reasonably required in order\nto perform such obligations, Landlord shall have such longer period. In the\nevent of Landlord's default as above set forth, then, and only then, Tenant may\nthen proceed in equity or at law to compel Landlord to perform its obligations\nand\/or to recover damages proximately caused by such failure to perform (except\nas and to the extent Tenant has waived its right to damages as provided in this\nLease).\n\n16.3 LIMITATION OF TENANT'S RECOURSE. If Landlord is a corporation, trust,\npartnership, joint venture, limited liability company, unincorporated\nassociation, or other form of business entity, Tenant agrees that (i) the\nobligations of Landlord under this Lease shall not constitute personal\nobligations of the officers, directors, trustees, partners, joint venturers,\nmembers, owners, stockholders, or other principals of such business entity, and\n(ii) Tenant shall have recourse only to the property of such corporation, trust,\npartnership, joint venture, limited liability company, unincorporated\nassociation, or other form of business entity for the satisfaction of such\nobligations and not against the assets of such officers, directors, trustees,\npartners, joint venturers, members, owners, stockholders or principals.\nAdditionally, if Landlord is a partnership or limited liability company, then\nTenant covenants and agrees:\n\n (a) No partner or member of Landlord shall be sued or named as a party\nin any suit or action\n\n\n\n 20.\n 21\n\nbrought by Tenant with respect to any alleged breach of this Lease (except to\nthe extent necessary to secure jurisdiction over the partnership and then only\nfor that sole purpose);\n\n (a) No service of process shall be made against any partner or member\nof Landlord except for the sole purpose of securing jurisdiction over the\npartnership; and\n\n (b) No writ of execution will ever be levied against the assets of any\npartner or member of Landlord other than to the extent of his or her interest in\nthe assets of the partnership or limited liability company constituting\nLandlord.\n\nTenant further agrees that each of the foregoing covenants and agreements shall\nbe enforceable by Landlord and by any partner or member of Landlord and shall be\napplicable to any actual or alleged misrepresentation or nondisclosure made\nregarding this Lease or the Leased Premises or any actual or alleged failure,\ndefault or breach of any covenant or agreement either expressly or implicitly\ncontained in this Lease or imposed by statute or at common law.\n\n16.3 TENANT'S WAIVER. Landlord and Tenant agree that the provisions of Paragraph\n12.3 above are intended to supersede and replace the provisions of California\nCivil Code Sections 1932(1), 1941 and 1942, and accordingly, Tenant hereby\nwaives the provisions of California Civil Code Sections 1932(1), 1941 and 1942\nand\/or any similar or successor law regarding Tenant's right to terminate this\nLease or to make repairs and deduct the expenses of such repairs from the rent\ndue under this Lease.\n\n\n ARTICLE 17\n\n GENERAL PROVISIONS\n\n17.1 TAXES ON TENANT'S PROPERTY. Tenant shall pay before delinquency any and all\ntaxes, assessments, license fees, use fees, permit fees and public charges of\nwhatever nature or description levied, assessed or imposed against Tenant or\nLandlord by a governmental agency arising out of, caused by reason of or based\nupon Tenant's estate in this Lease, Tenant's ownership of property, improvements\nmade by Tenant to the Leased Premises or the Outside Areas, improvements made by\nLandlord for Tenant's use within the Leased Premises or the Outside Areas,\nTenant's use (or estimated use) of public facilities or services or Tenant's\nconsumption (or estimated consumption) of public utilities, energy, water or\nother resources (collectively, \"Tenant's Interest\"). Upon demand by Landlord,\nTenant shall furnish Landlord with satisfactory evidence of these payments.\nTenant may elect to protest such taxes provided that Tenant first notifies\nLandlord in writing and posts a bond equal to 100% of the maximum amount of such\ntaxes plus penalties and interest. If any such taxes, assessments, fees or\npublic charges are levied against Landlord, Landlord's property, the Building or\nthe Property, or if the assessed value of the Building or the Property is\nincreased by the inclusion therein of a value placed upon Tenant's Interest,\nregardless of the validity thereof, Landlord shall have the right to require\nTenant to pay such taxes, and if not paid and satisfactory evidence of payment\ndelivered to Landlord at least ten days prior to delinquency, then Landlord\nshall have the right to pay such taxes on Tenant's behalf and to invoice Tenant\nfor the same. Tenant shall, within the earlier to occur of (a) thirty (30) days\nof the date it receives an invoice from Landlord setting forth the amount of\nsuch taxes, assessments, fees, or public charge so levied, or (b) the due date\nof such invoice, pay to Landlord, as Additional Rent, the amount set forth in\nsuch invoice. Failure by Tenant to pay the amount so invoiced within such time\nperiod shall be conclusively deemed a default by Tenant under this Lease. Tenant\nshall have the right to bring suit in any court of competent jurisdiction to\nrecover from the taxing authority the amount of any such taxes, assessments,\nfees or public charges so paid.\n\n17.2 HOLDING OVER. This Lease shall terminate without further notice on the\nLease Expiration Date (as set forth in Article 1). Any holding over by Tenant\nafter expiration of the Lease Term shall neither constitute a renewal nor\nextension of this Lease nor give Tenant any rights in or to the Leased Premises\nexcept as expressly provided in this Paragraph. Any such holding over to which\nLandlord has consented shall be construed to be a tenancy from month to month,\non the same terms and conditions herein specified insofar as applicable, except\nthat the Base Monthly Rent shall be increased to an amount equal to one hundred\nfifty percent (150%) of the Base Monthly Rent payable during the last full month\nimmediately preceding such holding over. Tenant acknowledges that if Tenant\nholds over without Landlord's consent, such holding over may compromise or\notherwise affect Landlord's ability to enter into new leases with prospective\ntenants regarding the Leased Premises. Therefore, if Tenant fails to surrender\nthe Leased Premises upon the expiration or termination of this Lease, in\naddition to any other liabilities to Landlord accruing therefrom, Tenant shall\nprotect, defend, indemnify and hold Landlord harmless from and against all\nclaims resulting from such failure, including, without limiting the foregoing,\nany claims made by any succeeding tenant founded upon such failure to surrender,\nand any losses suffered by Landlord, including lost profits, resulting from such\nfailure to surrender.\n\n17.3 SUBORDINATION TO MORTGAGES. This Lease is subject to and subordinate to all\nground leases, mortgages and deeds of trust which affect the Building or the\nProperty and which are of public record as of the Effective Date of this Lease,\nand to all renewals, modifications, consolidations, replacements and extensions\nthereof. However, if the lessor under any such ground lease or any lender\nholding any such mortgage or deed of trust shall advise Landlord that it desires\nor requires this Lease to be made prior and superior thereto, then, upon written\nrequest of Landlord to Tenant, Tenant shall promptly execute, acknowledge and\ndeliver any and all customary or reasonable documents or instruments which\nLandlord and such lessor or lender deems necessary or desirable to make this\nLease prior thereto. Tenant hereby consents to Landlord's ground leasing the\nland underlying the Building or the Property and\/or encumbering the Building or\nthe Property as security for future loans on such terms as Landlord shall\ndesire, all of\n\n\n\n 21.\n 22\n\nwhich future ground leases, mortgages or deeds of trust shall be subject to and\nsubordinate to this Lease. However, if any lessor under any such future ground\nlease or any lender holding such future mortgage or deed of trust shall desire\nor require that this Lease be made subject to and subordinate to such future\nground lease, mortgage or deed of trust, then Tenant agrees, within ten days\nafter Landlord's written request therefor, to execute, acknowledge and deliver\nto Landlord any and all documents or instruments requested by Landlord or by\nsuch lessor or lender as may be necessary or proper to assure the subordination\nof this Lease to such future ground lease, mortgage or deed of trust, but only\nif such lessor or lender agrees to recognize Tenant's rights under this Lease\nand agrees not to disturb Tenant's quiet possession of the Leased Premises so\nlong as Tenant is not in default under this Lease. If Landlord assigns the Lease\nas security for a loan, Tenant agrees to execute such documents as are\nreasonably requested by the lender and to provide reasonable provisions in the\nLease protecting such lender's security interest which are customarily required\nby institutional lenders making loans secured by a deed of trust. Landlord\nagrees to use commercially reasonable efforts to obtain a subordination,\nnon-disturbance agreement and attornment agreement from the existing lender\nholding a deed of trust on the Property.\n\n17.4 TENANT'S ATTORNMENT UPON FORECLOSURE. Tenant shall, upon request, attorn\n(i) to any purchaser of the Building or the Property at any foreclosure sale or\nprivate sale conducted pursuant to any security instruments encumbering the\nBuilding or the Property, (ii) to any grantee or transferee designated in any\ndeed given in lieu of foreclosure of any security interest encumbering the\nBuilding or the Property, or (iii) to the lessor under an underlying ground\nlease of the land underlying the Building or the Property, should such ground\nlease be terminated; provided that such purchaser, grantee or lessor recognizes\nTenant's rights under this Lease.\n\n17.5 MORTGAGEE PROTECTION. In the event of any default on the part of Landlord,\nTenant will give notice by registered mail to any Lender or lessor under any\nunderlying ground lease who shall have requested, in writing, to Tenant that it\nbe provided with such notice, and Tenant shall offer such Lender or lessor a\nreasonable opportunity to cure the default, including time to obtain possession\nof the Leased Premises by power of sale or judicial foreclosure or other\nappropriate legal proceedings if reasonably necessary to effect a cure.\n\n17.6 ESTOPPEL CERTIFICATE. Tenant will, following any request by Landlord,\npromptly execute and deliver to Landlord an estoppel certificate substantially\nin form attached as Exhibit E, and certifying such other information about this\nLease, if true, as may be reasonably requested by Landlord, its Lender or\nprospective lenders, investors or purchasers of the Building or the Property.\nTenant's failure to execute and deliver such estoppel certificate within ten\n(10) days after Landlord's request therefor shall be a material default by\nTenant under this Lease, and Landlord shall have all of the rights and remedies\navailable to Landlord as Landlord would otherwise have in the case of any other\nmaterial default by Tenant, including the right to terminate this Lease and sue\nfor damages proximately caused thereby, it being agreed and understood by Tenant\nthat Tenant's failure to so deliver such estoppel certificate in a timely manner\ncould result in Landlord being unable to perform committed obligations to other\nthird parties which were made by Landlord in reliance upon this covenant of\nTenant. Landlord and Tenant intend that any statement delivered pursuant to this\nparagraph may be relied upon by any Lender or purchaser or prospective Lender or\npurchaser of the Building, the Property, or any interest in them.\n\n17.7 TENANT'S FINANCIAL INFORMATION. Tenant shall, within ten business days\nafter Landlord's request therefor, deliver to Landlord a copy of Tenant's (and\nany guarantor's) current financial statements (including a balance sheet, income\nstatement and statement of cash flow, all prepared in accordance with generally\naccepted accounting principles) and any such other information reasonably\nrequested by Landlord regarding Tenant's financial condition. Landlord shall be\nentitled to disclose such financial statements or other information to its\nLender, to any present or prospective principal of or investor in Landlord, or\nto any prospective Lender or purchaser of the Building, the Property, or any\nportion thereof or interest therein. Any such financial statement or other\ninformation which is marked \"confidential\" or \"company secrets\" (or is otherwise\nsimilarly marked by Tenant) shall be confidential and shall not be disclosed by\nLandlord to any third party except as specifically provided in this paragraph,\nunless the same becomes a part of the public domain without the fault of\nLandlord.\n\n17.8 TRANSFER BY LANDLORD. Landlord and its successors in interest shall have\nthe right to transfer their interest in the Building, the Property, or any\nportion thereof at any time and to any person or entity. In the event of any\nsuch transfer, the Landlord originally named herein (and in the case of any\nsubsequent transfer, the transferor), from the date of such transfer, (i) shall\nbe automatically relieved, without any further act by any person or entity, of\nall liability for the performance of the obligations of the Landlord hereunder\nwhich may accrue after the date of such transfer and (ii) shall be relieved of\nall liability for the performance of the obligations of the Landlord hereunder\nwhich have accrued before the date of transfer if its transferee agrees to\nassume and perform all such prior obligations of the Landlord hereunder. Tenant\nshall attorn to any such transferee. After the date of any such transfer, the\nterm \"Landlord\" as used herein shall mean the transferee of such interest in the\nBuilding or the Property.\n\n17.9 FORCE MAJEURE. The obligations of each of the parties under this Lease\n(other than the obligations to pay money) shall be temporarily excused if such\nparty is prevented or delayed in performing such obligations by reason of any\nstrikes, lockouts or labor disputes; government restrictions, regulations,\ncontrols, action or inaction; civil commotion; or extraordinary weather, fire or\nother acts of God.\n\n17.10 NOTICES. Any notice required or permitted to be given under this Lease\nshall be in writing and (i) personally delivered, (ii) sent by United States\nmail, registered or certified mail, postage prepaid, return receipt requested,\n(iii) sent by Federal Express or similar nationally recognized overnight courier\nservice, or (iv) transmitted by facsimile with a hard copy sent within one (1)\nbusiness day by any of the foregoing means, and in all cases addressed as\nfollows, and such notice shall be deemed to have been given upon the date of\nactual receipt or delivery\n\n\n\n 22.\n 23\n\n(or refusal to accept delivery) at the address specified below (or such other\naddresses as may be specified by notice in the foregoing manner) as indicated on\nthe return receipt or air bill:\n\n IF TO LANDLORD: Corporate Technology Centre Associates\n c\/o Menlo Equities LLC\n 525 University Avenue\n Suite 100\n Palo Alto, California 94301\n Attention: Henry Bullock\/Richard Holmstrom\n Facsimile: (650) 326-9300\n\n with a copy to: Cooley Godward LLP\n One Maritime Plaza\n 20th Floor\n San Francisco, California 94111\n Attention: Paul Churchill\n Facsimile: (415) 951-3699\n\n IF TO TENANT: Redback Networks Inc.\n 1389 Moffett Park Drive,\n Sunnyvale, California 94089\n Attention: Pat Ryan\n\n with a copy to: Hallgrimson McNichols LLP\n 40 S. Market Street, Suite 700\n San Jose, California 95113\n Attention: Eric Wong\n\n\nAny notice given in accordance with the foregoing shall be deemed received upon\nactual receipt or refusal to accept delivery.\n\n17.11 ATTORNEYS' FEES. In the event any party shall bring any action,\narbitration proceeding or legal proceeding alleging a breach of any provision of\nthis Lease, to recover rent, to terminate this Lease, or to enforce, protect,\ndetermine or establish any term or covenant of this Lease or rights or duties\nhereunder of either party, the prevailing party shall be entitled to recover\nfrom the non-prevailing party as a part of such action or proceeding, or in a\nseparate action for that purpose brought within one year from the determination\nof such proceeding, reasonable attorneys' fees, expert witness fees, court costs\nand other reasonable expenses incurred by the prevailing party.\n\n17.12 DEFINITIONS. Any term that is given a special meaning by any provision in\nthis Lease shall, unless otherwise specifically stated, have such meaning\nwherever used in this Lease or in any Addenda or amendment hereto. In addition\nto the terms defined in Article 1, the following terms shall have the following\nmeanings:\n\n (a) REAL PROPERTY TAXES. The term \"Real Property Tax\" or \"Real Property\nTaxes\" shall each mean Tenant's Expense Share of (i) all taxes, assessments,\nlevies and other charges of any kind or nature whatsoever, general and special,\nforeseen and unforeseen (including all instruments of principal and interest\nrequired to pay any general or special assessments for public improvements and\nany increases resulting from reassessments caused by any change in ownership or\nnew construction), now or hereafter imposed by any governmental or\nquasi-governmental authority or special district having the direct or indirect\npower to tax or levy assessments, which are levied or assessed for whatever\nreason against the Property or any portion thereof, or Landlord's interest\nherein, or the fixtures, equipment and other property of Landlord that is an\nintegral part of the Property and located thereon, or Landlord's business of\nowning, leasing or managing the Property or the gross receipts, income or\nrentals from the Property, (ii) all charges, levies or fees imposed by any\ngovernmental authority against Landlord by reason of or based upon the use of or\nnumber of parking spaces within the Property, the amount of public services or\npublic utilities used or consumed (e.g. water, gas, electricity, sewage or waste\nwater disposal) at the Property, the number of person employed by tenants of the\nProperty, the size (whether measured in area, volume, number of tenants or\nwhatever) or the value of the Property, or the type of use or uses conducted\nwithin the Property, and all costs and fees (including attorneys' fees)\nreasonably incurred by Landlord in contesting any Real Property Tax and in\nnegotiating with public authorities as to any Real Property Tax. If, at any time\nduring the Lease Term, the taxation or assessment of the Property prevailing as\nof the Effective Date of this Lease shall be altered so that in lieu of or in\naddition to any the Real Property Tax described above there shall be levied,\nawarded or imposed (whether by reason of a change in the method of taxation or\nassessment, creation of a new tax or charge, or any other cause) an alternate,\nsubstitute, or additional use or charge (i) on the value, size, use or occupancy\nof the Property or Landlord's interest therein or (ii) on or measured by the\ngross receipts, income or rentals from the Property, or on Landlord's business\nof owning, leasing or managing the Property or (iii) computed in any manner with\nrespect to the operation of the Property, then any such tax or charge, however\ndesignated, shall be included within the meaning of the terms \"Real Property\nTax\" or \"Real Property Taxes\" for purposes of this Lease. If any Real Property\nTax is partly based upon property or rents unrelated to the Property, then only\nthat part of such Real Property Tax that is fairly allocable to the Property\nshall be included within the meaning of the terms \"Real Property Tax\" or \"Real\nProperty Taxes.\" Notwithstanding the foregoing, the terms \"Real Property Tax\" or\n\"Real Property Taxes\" shall not include estate, inheritance, transfer, gift or\nfranchise taxes of Landlord or the federal or state income tax imposed on\nLandlord's income from all sources.\n\n\n\n 23.\n 24\n\n (b) LANDLORD'S INSURANCE COSTS. The term \"Landlord's Insurance Costs\"\nshall mean Tenant's Expense Share of the costs to Landlord to carry and maintain\nthe policies of fire and property damage insurance for the Building and the\nProperty and general liability and any other insurance required or permitted to\nbe carried by Landlord pursuant to Article 9, together with any deductible\namounts paid by Landlord upon the occurrence of any insured casualty or loss. If\nany of Landlord's Insurance Costs are partly based upon property unrelated to\nthe Property (e.g., another portion of the Project), then only that part of\nLandlord's Insurance Costs that is fairly allocable to the Property shall be\nincluded in Landlord's Insurance Costs hereunder.\n\n (c) PROPERTY MAINTENANCE COSTS. The term \"Property Maintenance Costs\"\nshall mean Tenant's Expense Share of all costs and expenses (except Landlord's\nInsurance Costs and Real Property Taxes) paid or incurred by Landlord in\nprotecting, operating, maintaining, repairing and preserving the Property and\nall parts thereof, including without limitation, (i) market rate professional\nmanagement fees of two percent (2%) of all base rent collected from tenants of\nthe Property, (ii) the amortizing portion of any costs incurred by Landlord in\nthe making of any modifications, alterations or improvements required by any\ngovernmental authority as set forth in Article 6, which are so amortized during\nthe Lease Term, and (iii) such other costs as may be paid or incurred with\nrespect to operating, maintaining, and preserving the Property, including, but\nlimited to, repairing or replacing, when necessary, electrical, plumbing,\nheating, ventilating and air conditioning systems serving the Building, and\nrepairing and resurfacing paved areas. \"Property Maintenance Costs\" shall not\ninclude the costs of repairing and\/or replacing the foundation, the roof\nstructure and the load-bearing and exterior walls of the Building. If any of the\nProperty Maintenance Costs are partly based upon property unrelated to the\nProperty (e.g., another portion of the Project), then only that part of Property\nMaintenance Costs that is fairly allocable to the Property shall be included in\nthe definition of Property Maintenance Costs hereunder.\n\n (d) PROPERTY OPERATING EXPENSES. The term \"Property Operating Expenses\"\nshall mean and include all Real Property Taxes, plus all Landlord's Insurance\nCosts, plus all Property Maintenance Costs.\n\n (e) LAW. The term \"Law\" shall mean any judicial decisions and any\nstatute, constitution, ordinance, resolution, regulation, rule, administrative\norder, or other requirements of any municipal, county, state, federal, or other\ngovernmental agency or authority having jurisdiction over the parties to this\nLease, the Leased Premises, the Building or the Property, or any of them, in\neffect either at the Effective Date of this Lease or at any time during the\nLease Term, including, without limitation, any regulation, order, or policy of\nany quasi-official entity or body (e.g. a board of fire examiners or a public\nutility or special district).\n\n (f) LENDER. The term \"Lender\" shall mean the holder of any promissory\nnote or other evidence of indebtedness secured by the Property or any portion\nthereof.\n\n (g) PRIVATE RESTRICTIONS. The term \"Private Restrictions\" shall mean\n(as they may exist from time to time) any and all covenants, conditions and\nrestrictions, private agreements, easements, and any other recorded documents or\ninstruments affecting the use of the Property, the Building, the Leased\nPremises, or the Outside Areas.\n\n (h) RENT. The term \"Rent\" shall mean collectively Base Monthly Rent and\nall Additional Rent.\n\n17.13 GENERAL WAIVERS. One party's consent to or approval of any act by the\nother party requiring the first party's consent or approval shall not be deemed\nto waive or render unnecessary the first party's consent to or approval of any\nsubsequent similar act by the other party. No waiver of any provision hereof, or\nany waiver of any breach of any provision hereof, shall be effective unless in\nwriting and signed by the waiving party. The receipt by Landlord of any rent or\npayment with or without knowledge of the breach of any other provision hereof\nshall not be deemed a waiver of any such breach. No waiver of any provision of\nthis Lease shall be deemed a continuing waiver unless such waiver specifically\nstates so in writing and is signed by both Landlord and Tenant. No delay or\nomission in the exercise of any right or remedy accruing to either party upon\nany breach by the other party under this Lease shall impair such right or remedy\nor be construed as a waiver of any such breach theretofore or thereafter\noccurring. The waiver by either party of any breach of any provision of this\nLease shall not be deemed to be a waiver of any subsequent breach of the same or\nany other provisions herein contained.\n\n17.14 MISCELLANEOUS. Should any provisions of this Lease prove to be invalid or\nillegal, such invalidity or illegality shall in no way affect, impair or\ninvalidate any other provisions hereof, and such remaining provisions shall\nremain in full force and effect. Time is of the essence with respect to the\nperformance of every provision of this Lease in which time of performance is a\nfactor. Any copy of this Lease which is executed by the parties shall be deemed\nan original for all purposes. This Lease shall, subject to the provisions\nregarding assignment, apply to and bind the respective heirs, successors,\nexecutors, administrators and assigns of Landlord and Tenant. The term \"party\"\nshall mean Landlord or Tenant as the context implies. If Tenant consists of more\nthan one person or entity, then all members of Tenant shall be jointly and\nseverally liable hereunder. This Lease shall be construed and enforced in\naccordance with the Laws of the State in which the Leased Premises are located.\nThe captions in this Lease are for convenience only and shall not be construed\nin the construction or interpretation of any provision hereof. When the context\nof this Lease requires, the neuter gender includes the masculine, the feminine,\na partnership, corporation, limited liability company, joint venture, or other\nform of business entity, and the singular includes the plural. The terms \"must,\"\n\"shall,\" \"will,\" and \"agree\" are mandatory. The term \"may\" is permissive. When a\nparty is required to do something by this Lease, it shall do so at its sole cost\nand expense without right of reimbursement from the other party unless specific\nprovision is made therefor. Where Landlord's consent is required hereunder, the\nconsent of any Lender shall also be required. Landlord and Tenant shall both be\ndeemed to have drafted this Lease, and the rule of construction that a document\nis to be construed against the drafting party\n\n\n\n 24.\n 25\n\nshall not be employed in the construction or interpretation of this Lease. Where\nTenant is obligated not to perform any act or is not permitted to perform any\nact, Tenant is also obligated to restrain any others reasonably within its\ncontrol, including agents, invitees, contractors, subcontractors and employees,\nfrom performing such act. Landlord shall not become or be deemed a partner or a\njoint venturer with Tenant by reason of any of the provisions of this Lease.\n\n\n ARTICLE 18\n\n CORPORATE AUTHORITY\n BROKERS AND ENTIRE AGREEMENT\n\n18.1 CORPORATE AUTHORITY. If Tenant is a corporation, each individual executing\nthis Lease on behalf of such corporation represents and warrants that Tenant is\nvalidly formed and duly authorized and existing, that Tenant is qualified to do\nbusiness in the State in which the Leased Premises are located, that Tenant has\nthe full right and legal authority to enter into this Lease, and that he or she\nis duly authorized to execute and deliver this Lease on behalf of Tenant in\naccordance with its terms. Tenant shall, within thirty days after execution of\nthis Lease, deliver to Landlord a certified copy of the resolution of its board\nof directors authorizing or ratifying the execution of this Lease or other\nevidence of due authorization and if Tenant fails to do so, Landlord at its sole\nelection may elect to terminate this Lease.\n\n18.2 BROKERAGE COMMISSIONS. Tenant and Landlord each represent, warrant and\nagree that they have not had any dealings with any real estate broker(s),\nleasing agent(s), finder(s) or salesmen, other than the Brokers (as named in\nArticle 1) with respect to the lease by it of the Leased Premises pursuant to\nthis Lease, and that Landlord will assume all obligations with respect to\nLandlord's Broker and Tenant's Broker and any other broker retained by Landlord.\nTenant will assume all obligations and responsibility with respect to the\npayment of any broker other than Tenant's Broker that Tenant retained. Each of\nLandlord and Tenant will indemnify, defend with competent counsel, and hold the\nother harmless from any liability for the payment of any real estate brokerage\ncommissions, leasing commissions or finder's fees claimed by any other real\nestate broker(s), leasing agent(s), finder(s), or salesmen due to the other\nparty's breach of the representations, warranties and covenants made by such\nparty in this Section 14.2.\n\n18.3 ENTIRE AGREEMENT. This Lease and the Exhibits (as described in Article 1),\nwhich Exhibits are by this reference incorporated herein, constitute the entire\nagreement between the parties, and there are no other agreements, understandings\nor representations between the parties relating to the lease by Landlord of the\nLeased Premises to Tenant, except as expressed herein. No subsequent changes,\nmodifications or additions to this Lease shall be binding upon the parties\nunless in writing and signed by both Landlord and Tenant.\n\n18.4 LANDLORD'S REPRESENTATIONS. Tenant acknowledges that neither Landlord nor\nany of its agents made any representations or warranties respecting the\nProperty, the Building or the Leased Premises, upon which Tenant relied in\nentering into the Lease, which are not expressly set forth in this Lease. Tenant\nfurther acknowledges that neither Landlord nor any of its agents made any\nrepresentations as to (i) whether the Leased Premises may be used for Tenant's\nintended use under existing Law, or (ii) the suitability of the Leased Premises\nfor the conduct of Tenant's business, or (iii) the exact square footage of the\nLeased Premises, and that Tenant relies solely upon its own investigations with\nrespect to such matters. Tenant expressly waives any and all claims for damage\nby reason of any statement, representation, warranty, promise or other agreement\nof Landlord or Landlord's agent(s), if any, not contained in this Lease or in\nany Exhibit attached hereto.\n\n\n ARTICLE 19\n\n OPTIONS TO EXTEND\n\n19.1 So long as Redback Networks, Inc. is the Tenant hereunder and occupies the\nentirety of the Leased Premises, and subject to the condition set forth in\nclause (b) below, Tenant shall have two options to extend the term of this Lease\nwith respect to the entirety of the Leased Premises, the first for a period of\nfive (5) years from the expiration of the ninth year of the Lease Term (the\n\"First Extension Period\"), and the second (the \"Second Extension Period\") for a\nperiod of five (5) years from the expiration of the First Extension Period,\nsubject to the following conditions:\n\n (a) Each option to extend shall be exercised, if at all, by notice of\nexercise given to Landlord by Tenant not more than twelve (12) months nor less\nthan nine (9) months prior to the expiration of the ninth year of the Lease Term\nor the expiration of the First Extension Period, as applicable;\n\n (b) Anything herein to the contrary notwithstanding, if Tenant is in\ndefault under any of the terms, covenants or conditions of this Lease, either at\nthe time Tenant exercises either extension option or on the commencement date of\nthe First Extension Period or the Second Extension Period, as applicable,\nLandlord shall have, in addition to all of Landlord's other rights and remedies\nprovided in this Lease, the right to terminate such option(s) to extend upon\nnotice to Tenant.\n\n19.2 In the event the applicable option is exercised in a timely fashion, the\nLease shall be extended for the term of the applicable extension period upon all\nof the terms and conditions of this Lease, provided that the Base Monthly Rent\nfor each extension period shall be ninety-five percent (95%) of the \"Fair Market\nRent\" for the Leased Premises, increased as set forth below. For purposes\nhereof, \"Fair Market Rent\" shall mean the Base Monthly Rent determined pursuant\nto the process described below. In no event, however, shall any adjustment of\nBase Monthly\n\n\n\n 25.\n 26\n\nRent pursuant to this paragraph result in a decrease of the Base Monthly Rent\nfor the Leased Premises below the amount due from Tenant for the preceding\nportion of the initial Lease Term (or the First Extension Period, if such Base\nMonthly Rent is being determined for the Second Extension Period) for which Base\nMonthly Rent had been fixed.\n\n19.3 Within thirty (30) days after receipt of Tenant's notice of exercise,\nLandlord shall notify Tenant in writing of Landlord's estimate of the Base\nMonthly Rent for the first year of the applicable extension period, and\nLandlord's estimate of annual increases. For purposes hereof, \"Fair Market Rent\"\nshall mean collectively, (1) Base Monthly Rent for the first year of the\napplicable extension period and (2) annual increases, if any, determined at the\ntime and in the same manner Base Monthly Rent for the first year is determined.\nWithin 30 days after receipt of such notice from Landlord, Tenant shall have the\nright either to (i) accept Landlord's estimate of Fair Market Rent or (ii) elect\nto arbitrate Landlord's estimate of Fair Market Rent, such arbitration to be\nconducted pursuant to the provisions hereof. Failure on the part of Tenant to\nrequire arbitration of Fair Market Rent within such 30-day period shall\nconstitute acceptance of the Fair Market Rent for the applicable extension\nperiod as calculated by Landlord. If Tenant elects arbitration, the arbitration\nshall be concluded within 90 days after the date of Tenant's election, subject\nto extension for an additional 30-day period if a third arbitrator is required\nand does not act in a timely manner. To the extent that arbitration has not been\ncompleted prior to the expiration of any preceding period for which Base Monthly\nRent has been determined, Tenant shall pay Base Monthly Rent at the rate\ncalculated by Landlord, with the potential for an adjustment to be made once\nFair Market Rent is ultimately determined by arbitration.\n\n19.4 In the event of arbitration, the judgment or the award rendered in any such\narbitration may be entered in any court having jurisdiction and shall be final\nand binding between the parties. The arbitration shall be conducted and\ndetermined in the City and County of San Francisco in accordance with the then\nprevailing rules of the American Arbitration Association or its successor for\narbitration of commercial disputes except to the extent that the procedures\nmandated by such rules shall be modified as follows:\n\n (a) Tenant shall make demand for arbitration in writing within thirty\n(30) days after service of Landlord's determination of Fair Market Rent given\nunder Paragraph 15.3 above, specifying therein the name and address of the\nperson to act as the arbitrator on its behalf. The arbitrator shall be qualified\nas a real estate appraiser familiar with the Fair Market Rent of similar\nindustrial, research and development, or office space in the Silicon Valley area\nwho would qualify as an expert witness over objection to give opinion testimony\naddressed to the issue in a court of competent jurisdiction. Failure on the part\nof Tenant to make a proper demand in a timely manner for such arbitration shall\nconstitute a waiver of the right thereto. Within fifteen (15) days after the\nservice of the demand for arbitration, Landlord shall give notice to Tenant,\nspecifying the name and address of the person designated by Landlord to act as\narbitrator on its behalf who shall be similarly qualified. If Landlord fails to\nnotify Tenant of the appointment of its arbitrator, within or by the time above\nspecified, then the arbitrator appointed by Tenant shall be the arbitrator to\ndetermine the issue.\n\n (b) In the event that two arbitrators are chosen pursuant to Paragraph\n15.4(a) above, the arbitrators so chosen shall, within fifteen (15) days after\nthe second arbitrator is appointed determine the Fair Market Rent. If the two\narbitrators shall be unable to agree upon a determination of Fair Market Rent\nwithin such 15-day period, they, themselves, shall appoint a third arbitrator,\nwho shall be a competent and impartial person with qualifications similar to\nthose required of the first two arbitrators pursuant to Paragraph 15.4(a). In\nthe event they are unable to agree upon such appointment within seven days after\nexpiration of such 15-day period, the third arbitrator shall be selected by the\nparties themselves, if they can agree thereon, within a further period of\nfifteen (15) days. If the parties do not so agree, then either party, on behalf\nof both, may request appointment of such a qualified person by the then Chief\nJudge of the United States District Court having jurisdiction over the County of\nSanta Clara, acting in his private and not in his official capacity, and the\nother party shall not raise any question as to such Judge's full power and\njurisdiction to entertain the application for and make the appointment. The\nthree arbitrators shall decide the dispute if it has not previously been\nresolved by following the procedure set forth below.\n\n (c) Where an issue cannot be resolved by agreement between the two\narbitrators selected by Landlord and Tenant or settlement between the parties\nduring the course of arbitration, the issue shall be resolved by the three\narbitrators within 15 days of the appointment of the third arbitrator in\naccordance with the following procedure. The arbitrator selected by each of the\nparties shall state in writing his determination of the Fair Market Rent\nsupported by the reasons therefor with counterpart copies to each party. The\narbitrators shall arrange for a simultaneous exchange of such proposed\nresolutions. The role of the third arbitrator shall be to select which of the\ntwo proposed resolutions most closely approximates his determination of Fair\nMarket Rent. The third arbitrator shall have no right to propose a middle ground\nor any modification of either of the two proposed resolutions. The resolution he\nchooses as most closely approximating his determination shall constitute the\ndecision of the arbitrators and be final and binding upon the parties.\n\n (d) In the event of a failure, refusal or inability of any arbitrator\nto act, his successor shall be appointed by him, but in the case of the third\narbitrator, his successor shall be appointed in the same manner as provided for\nappointment of the third arbitrator. The arbitrators shall decide the issue\nwithin fifteen (15) days after the appointment of the third arbitrator. Any\ndecision in which the arbitrator appointed by Landlord and the arbitrator\nappointed by Tenant concur shall be binding and conclusive upon the parties.\nEach party shall pay the fee and expenses of its respective arbitrator and both\nshall share the fee and expenses of the third arbitrator, if any, and the\nattorneys' fees and expenses of counsel for the respective parties and of\nwitnesses shall be paid by the respective party engaging such counsel or calling\nsuch witnesses.\n\n\n\n 26.\n 27\n\n (e) The arbitrators shall have the right to consult experts and\ncompetent authorities to obtain factual information or evidence pertaining to a\ndetermination of Fair Market Rent, but any such consultation shall be made in\nthe presence of both parties with full right on their part to cross-examine. The\narbitrators shall render their decision and award in writing with counterpart\ncopies to each party. The arbitrators shall have no power to modify the\nprovisions of this Lease.\n\n\n ARTICLE 20\n\n TELEPHONE SERVICE\n\n Notwithstanding any other provision of this Lease to the contrary:\n\n (a) So long as the entirety of the Leased Premises is leased to Tenant:\n\n (i) Landlord shall have no responsibility for providing to Tenant\nany telephone equipment, including wiring, within the Leased Premises or for\nproviding telephone service or connections from the utility to the Leased\nPremises; and\n\n (ii) Landlord makes no warranty as to the quality, continuity or\navailability of the telecommunications services in the Building, and Tenant\nhereby waives any claim against Landlord for any actual or consequential damages\n(including damages for loss of business) in the event Tenant's\ntelecommunications services in any way are interrupted, damaged or rendered less\neffective, except to the extent caused by the grossly negligent or willful act\nor omission by Landlord, its agents or employees. Landlord shall not be liable\nto Tenant and Tenant waives all claims against Landlord whatsoever, whether for\npersonal injury, property damage, loss of use of the Leased Premises, or\notherwise, due to the interruption or failure of telephone services to the\nLeased Premises. Tenant hereby holds Landlord harmless and agrees to indemnify,\nprotect and defend Landlord from and against any liability for any damage, loss\nor expense due to any failure or interruption of telephone service to the Leased\nPremises for any reason.\n\n (b) At such time as the entirety of the Building is no longer leased to\nTenant, Landlord shall in its sole discretion have the right, by written notice\nto Tenant, to elect to assume limited responsibility for INC, as provided below,\nand upon such assumption of responsibility by Landlord, this subparagraph (b)\nshall apply prospectively.\n\n (i) Landlord shall provide Tenant access to such quantity of pairs\nin the Building intra-building network cable (\"INC\") as is determined to be\navailable by Landlord in its reasonable discretion. Tenant's access to the INC\nshall be solely by arrangements made by Tenant, as Tenant may elect, directly\nwith Pacific Bell or Landlord (or such vendor as Landlord may designate), and\nTenant shall pay all reasonable charges as may be imposed in connection\ntherewith. Pacific Bell's charges shall be deemed to be reasonable. Subject to\nthe foregoing, Landlord shall have no responsibility for providing to Tenant any\ntelephone equipment, including wiring, within the Leased Premises or for\nproviding telephone service or connections from the utility to the Leased\nPremises, except as required by law.\n\n (ii) Tenant shall not alter, modify, add to or disturb any\ntelephone wiring in the Leased Premises or elsewhere in the Building without the\nLandlord's prior written consent. Tenant shall be liable to Landlord for any\ndamage to the telephone wiring in the Building due to the act, negligent or\notherwise, of Tenant or any employee, contractor or other agent of Tenant.\nTenant shall have no access to the telephone closets within the Building, except\nin the manner and under procedures established by Landlord. Tenant shall\npromptly notify Landlord of any actual or suspected failure of telephone service\nto the Leased Premises.\n\n (iii) All costs incurred by Landlord for the installation,\nmaintenance, repair and replacement of telephone wiring in the Building shall be\na Property Maintenance Cost.\n\n (iv) Landlord makes no warranty as to the quality, continuity or\navailability of the telecommunications services in the Building, and Tenant\nhereby waives any claim against Landlord for any actual or consequential damages\n(including damages for loss of business) in the event Tenant's\ntelecommunications services in any way are interrupted, damaged or rendered less\neffective, except to the extent caused by the grossly negligent or willful act\nor omission by Landlord, its agents or employees. Tenant acknowledges that\nLandlord meets its duty of care to Tenant with respect to the Building INC by\ncontracting with a reliable third party vendor to assume responsibility for the\nmaintenance and repair thereof (which contract shall contain provisions\nrequiring such vendor to inspect the INC periodically (the frequency of such\ninspections to be determined by such vendor based on its experience and\nprofessional judgment), and requiring such vendor to meet local and federal\nrequirements for telecommunications material and workmanship). Subject to the\nforegoing, Landlord shall not be liable to Tenant and Tenant waives all claims\nagainst Landlord whatsoever, whether for personal injury, property damage, loss\nof use of the Leased Premises, or otherwise, due to the interruption or failure\nof telephone services to the Leased Premises. Tenant hereby holds Landlord\nharmless and agrees to indemnify, protect and defend Landlord from and against\nany liability for any damage, loss or expense due to any failure or interruption\nof telephone service to the Leased Premises for any reason.\n\n\n\n 27.\n 28\n\n IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of\nthe respective dates below set forth with the intent to be legally bound thereby\nas of the Effective Date of this Lease first above set forth.\n\n\n\n LANDLORD:\n\n\n CORPORATE TECHNOLOGY CENTRE ASSOCIATES LLC,\n a California limited liability company\n\n\n By: Corporate Technology Centre Partners LLC\n a California limited liability company\n Its Manager\n\n\n By: Menlo Equities LLC\n a California limited liability company\n Its Managing Member\n\n By: Menlo Equities, Inc.\n Its Managing Member\n\n\nDated: October 27, 1999 By: \/s\/ Henry D. Bullock\n -----------------------------\n Henry D. Bullock\n President\n\n\n TENANT:\n\n REDBACK NETWORKS, INC.,\n a Delaware corporation\n\n\nDated: October 27, 1999 By: \/s\/ Craig M. Gentner\n ---------------------------\n Title:\n\n\nDated: By:\n Title:\n\n\n\n 28.\n\n 29\n\n TABLE OF CONTENTS\n\n\n<\/pre>\n
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\narticle 1 REFERENCE……………………………………………………………………………1<\/p>\n 1.1 References…………………………………………………………………………..1<\/p>\n
article 2 Leased Premises, Term And Possession……………………………………………………2<\/p>\n
2.1 Demise Of Leased Premises……………………………………………………………..2<\/p>\n
2.2 Right To Use Outside Areas…………………………………………………………….2<\/p>\n
2.3 Lease Commencement Date And Lease Term………………………………………………….3<\/p>\n
2.4 Delivery Of Possession………………………………………………………………..3<\/p>\n
2.5 Performance Of Improvement Work; Acceptance Of Possession…………………………………3<\/p>\n
2.6 Surrender Of Possession……………………………………………………………….3<\/p>\n
article 3 Rent, Late Charges And Security Deposits………………………………………………..3<\/p>\n
3.1 Base Monthly Rent…………………………………………………………………….3<\/p>\n
3.2 Additional Rent………………………………………………………………………3<\/p>\n
3.3 Year-End Adjustments………………………………………………………………….4<\/p>\n
3.4 Late Charge, And Interest On Rent In Default…………………………………………….4<\/p>\n
3.5 Payment Of Rent………………………………………………………………………4<\/p>\n
3.6 Prepaid Rent…………………………………………………………………………4<\/p>\n
3.7 Security Deposit……………………………………………………………………..5<\/p>\n
article 4 Use Of Leased Premises And Outside Area…………………………………………………5<\/p>\n
4.1 Permitted Use………………………………………………………………………..5<\/p>\n
4.2 General Limitations On Use…………………………………………………………….5<\/p>\n
4.3 Noise And Emissions…………………………………………………………………..6<\/p>\n
4.4 Trash Disposal……………………………………………………………………….6<\/p>\n
4.5 Parking……………………………………………………………………………..6
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\n 4.6 Signs……………………………………………………………………………….6<\/p>\n 4.7 Compliance With Laws And Private Restrictions……………………………………………6<\/p>\n
4.8 Compliance With Insurance Requirements………………………………………………….6<\/p>\n
4.9 Landlord’s Right To Enter……………………………………………………………..6<\/p>\n
4.10 Use Of Outside Areas………………………………………………………………….7<\/p>\n
4.11 Environmental Protection………………………………………………………………7<\/p>\n
4.12 Rules And Regulations…………………………………………………………………8<\/p>\n
4.13 Reservations…………………………………………………………………………8<\/p>\n
4.14 Roof………………………………………………………………………………..8<\/p>\n
article 5 Repairs, Maintenance, Services And Utilities…………………………………………….8<\/p>\n
5.1 Repair And Maintenance………………………………………………………………..8<\/p>\n
(a) Tenant’s Obligations………………………………………………………….8<\/p>\n
(b) Landlord’s Obligation…………………………………………………………9<\/p>\n
5.2 Utilities……………………………………………………………………………9<\/p>\n
5.3 Security…………………………………………………………………………….9<\/p>\n
5.4 Energy And Resource Consumption………………………………………………………..9<\/p>\n
5.5 Limitation Of Landlord’s Liability……………………………………………………..9<\/p>\n
article 6 Alterations And Improvements…………………………………………………………..9<\/p>\n
6.1 By Tenant……………………………………………………………………………9<\/p>\n
6.2 Ownership Of Improvements…………………………………………………………….10<\/p>\n
6.3 Alterations Required By Law…………………………………………………………..10<\/p>\n
6.4 Liens………………………………………………………………………………10<\/p>\n
article 7 Assignment And Subletting By Tenant……………………………………………………10
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\n 7.1 By Tenant…………………………………………………………………………..10<\/p>\n 7.2 Merger, Reorganization, or Sale of Assets………………………………………………11<\/p>\n
7.3 Landlord’s Election………………………………………………………………….11<\/p>\n
7.4 Conditions To Landlord’s Consent………………………………………………………12<\/p>\n
7.5 Assignment Consideration And Excess Rentals Defined……………………………………..12<\/p>\n
7.6 Payments……………………………………………………………………………13<\/p>\n
7.7 Good Faith………………………………………………………………………….13<\/p>\n
7.8 Effect Of Landlord’s Consent………………………………………………………….13<\/p>\n
article 8 Limitation On Landlord’s Liability And Indemnity………………………………………..13<\/p>\n
8.1 Limitation On Landlord’s Liability And Release………………………………………….13<\/p>\n
8.2 Tenant’s Indemnification Of Landlord…………………………………………………..13<\/p>\n
article 9 Insurance…………………………………………………………………………..14<\/p>\n
9.1 Tenant’s Insurance…………………………………………………………………..14<\/p>\n
9.2 Landlord’s Insurance…………………………………………………………………15<\/p>\n
9.3 Mutual Waiver Of Subrogation………………………………………………………….15<\/p>\n
article 10 Damage To Leased Premises…………………………………………………………….15<\/p>\n
10.1 Landlord’s Duty To Restore……………………………………………………………15<\/p>\n
10.2 Insurance Proceeds…………………………………………………………………..15<\/p>\n
10.3 Landlord’s Right To Terminate…………………………………………………………15<\/p>\n
10.4 Tenant’s Right To Terminate…………………………………………………………..16<\/p>\n
10.5 Tenant’s Waiver……………………………………………………………………..16<\/p>\n
10.6 Abatement Of Rent……………………………………………………………………16<\/p>\n
article 11 Condemnation………………………………………………………………………..16
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\n 11.1 Tenant’s Right To Terminate…………………………………………………………..16<\/p>\n 11.2 Landlord’s Right To Terminate…………………………………………………………16<\/p>\n
11.3 Restoration…………………………………………………………………………16<\/p>\n
11.4 Temporary Taking…………………………………………………………………….16<\/p>\n
11.5 Division Of Condemnation Award………………………………………………………..16<\/p>\n
11.6 Abatement Of Rent……………………………………………………………………17<\/p>\n
11.7 Taking Defined………………………………………………………………………17<\/p>\n
article 12 Default And Remedies…………………………………………………………………17<\/p>\n
12.1 Events Of Tenant’s Default……………………………………………………………17<\/p>\n
12.2 Landlord’s Remedies………………………………………………………………….17<\/p>\n
12.3 Landlord’s Default And Tenant’s Remedies……………………………………………….18<\/p>\n
12.4 Limitation Of Tenant’s Recourse……………………………………………………….18<\/p>\n
12.5 Tenant’s Waiver……………………………………………………………………..19<\/p>\n
article 13 General Provisions…………………………………………………………………..19<\/p>\n
13.1 Taxes On Tenant’s Property……………………………………………………………19<\/p>\n
13.2 Holding Over………………………………………………………………………..19<\/p>\n
13.3 Subordination To Mortgages……………………………………………………………19<\/p>\n
13.4 Tenant’s Attornment Upon Foreclosure…………………………………………………..20<\/p>\n
13.5 Mortgagee Protection…………………………………………………………………20<\/p>\n
13.6 Estoppel Certificate…………………………………………………………………20<\/p>\n
13.7 Tenant’s Financial Information………………………………………………………..20<\/p>\n
13.8 Transfer By Landlord…………………………………………………………………20<\/p>\n
13.9 Force Majeure……………………………………………………………………….20
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\n 13.10 Notices…………………………………………………………………………….20<\/p>\n 13.11 Attorneys’ Fees……………………………………………………………………..21<\/p>\n
13.12 Definitions…………………………………………………………………………21<\/p>\n
(a) Real Property Taxes………………………………………………………….21<\/p>\n
(b) Landlord’s Insurance Costs……………………………………………………21<\/p>\n
(c) Property Maintenance Costs……………………………………………………22<\/p>\n
(d) Property Operating Expenses…………………………………………………..22<\/p>\n
(e) Law………………………………………………………………………..22<\/p>\n
(f) Lender……………………………………………………………………..22<\/p>\n
(g) Private Restrictions…………………………………………………………22<\/p>\n
(h) Rent……………………………………………………………………….22<\/p>\n
13.13 General Waivers……………………………………………………………………..22<\/p>\n
13.14 Miscellaneous……………………………………………………………………….22<\/p>\n
article 14 Corporate Authority Brokers And Entire Agreement………………………………………..23<\/p>\n
14.1 Corporate Authority………………………………………………………………….23<\/p>\n
14.2 Brokerage Commissions………………………………………………………………..23<\/p>\n
14.3 Entire Agreement…………………………………………………………………….23<\/p>\n
14.4 Landlord’s Representations……………………………………………………………23<\/p>\n
article 15 Options To Extend……………………………………………………………………23<\/p>\n
article 16 Telephone Service……………………………………………………………………25
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